The Ranks’ lawsuit did produce a court order to pry loose that “Presidential Advance Manual,” which laid out so explicitly the White House policy on silencing criticism. “Remember,” the instructions warn, “avoid physical contact with demonstrators! Most often, the demonstrators want a physical confrontation. Do not fall into their trap! Also, do not do anything or say anything that might result in the physical harm to the demonstrators. Before taking action, the Advance person must decide if the solution would cause more negative publicity than if the demonstrators were simply left alone.”
With “publicity” the essential test, the White House usually calculated that suppressing free speech would work better than respecting it. Fanning out through parking lots, volunteers and officials even tried to spot potential dissidents by checking bumper stickers. In Denver, two people with entry tickets from their congressman were held outside a Bush address on Social Security because their bumper sticker read “No More Blood for Oil.” They were admitted after being warned not to try anything “funny,” and minutes later were told to leave by a higher official, although they neither carried signs nor wore clothing with political messages. The Secret Service enforced the staff’s expulsion order.47
Citizens with tickets to a presidential speech in La Crosse, Wisconsin, were required to unbutton their outer garments, according to an ACLU complaint, and a woman wearing a critical T-shirt “had her ticket ripped up and was ejected by security officials.” Several dozen people appeared on a “do not admit list” in Fargo, North Dakota, most of them labeled as members of “a liberal organization,” the ACLU noted. “Some had written letters to the editor opposing the President’s policies.” A student in Tucson, Arizona, was excluded from a forum on Social Security, presided over by Bush, for the offense of wearing a Young Democrats T-shirt.48
Again and again, as local officials candidly told protesters and judges, the Secret Service asked police departments throughout the country to restrict demonstrators to zones that were out of sight. The agency requested police in Stockton, California, to herd protesters behind a row of buses where they couldn’t be seen or heard, while Bush supporters with signs were allowed in plain view as the president campaigned for a local candidate. Police in Trenton, New Jersey, were required to consult with the Secret Service about the location of a protest zone, which was created in a parking lot across a four-lane highway separated by a high wire fence from the Sovereign Bank Arena, where Bush was arriving for a fund-raiser.
Similarly, police testified in a lawsuit filed against them that they had followed Secret Service demands to locate a “designated free speech zone” on a baseball field one-third of a mile from a Bush speech in Neville Island, Pennsylvania, while supporters with signs were permitted along the motorcade route. Bill Neel, a retired steelworker, said he’d thought the whole country was a free speech zone. He learned otherwise when he was arrested for asserting his right to stand among the supporters.
A couple of years after the contested 2000 election, a sardonic sign saying “Welcome Governor Bush” got the attention of a policeman who ordered the demonstrator to a protest zone behind a building at Western Michigan University, two football fields away from the president’s motorcade route. When he insisted on staying, the protester was jailed on Secret Service instructions, the police testified. Also, an environmentalist named John Blair was arrested for carrying a sign reading “Cheney—19th C. Energy Man,” even though he was across the street from the Evansville, Indiana, civic center where the vice president was scheduled to speak. The sidewalk directly in front of the center remained open to unscreened pedestrians not expressing political views, meaning that security was not the concern. After a summary judgment in his favor, Blair won a large, undisclosed settlement from the city.
As the trivial suppressions added up, they wounded free speech with a thousand cuts. A Secret Service agent in Washington, D.C., sent Children’s Defense Fund demonstrators away from the Hilton hotel during a Bush speech, to a spot across the street. A protest zone in Missouri was placed one-quarter mile from the St. Charles Family Arena, where Bush came to campaign. In St. Louis, three months later, Andrew Wimmer was ordered to remove his sign saying “Instead of War, Invest in People” to a protest zone three blocks away and down an embankment; for refusing, he was taken into custody, while a woman was allowed to stay with her sign: “Mr. President, We Love You.”49 No matter that assassins and terrorists don’t make a habit of waving signs before they strike. No matter that someone seeking to do harm could apparently get close just by holding a placard saying, “Mr. President, We Love You.”
Allowing pro-Bush sign holders near and distancing anti-Bush protesters violated the “content neutral” principle that courts have required in the regulation of demonstrations—that is, to be consistent with the First Amendment, restrictions for safety and traffic flow must apply to all messages equally, not just certain viewpoints. New York City police cadets are taught the “sight and sound” rule (which the department doesn’t always follow) that permits demonstrators “as near to the target of their protest as is consistent with safety and reasonable requirements of unobstructed passage.”50
Constitutional precedent received little respect from the Bush White House, however. Typically, arrested protesters had the charges dismissed. Local officials sometimes apologized and even ended up paying monetary damages. But the vindication came too late, because the discordant speech had already been silenced—a form of prior restraint, as if a newspaper had been blocked from printing a story and won the case long after the news value had vanished. The next time, in the next city, the pattern repeated itself: exclusion, arrest, dismissal, apology, and sometimes a fat check, which the White House often left the locals to write. An attempt by the ACLU in 2003 to bring this to a halt, by seeking an injunction against the Secret Service’s establishment of distant protest zones, failed when the organizations filing suit were judged to have no standing. They could not prove that they were likely to be damaged in the future.51 Nor could an individual show ahead of time that she would be expelled for her critical T-shirt.
Only if government notifies protesters in advance that they’ll be placed far from the site do they have a chance to go into court for a preemptive order. They tried and failed before the 2008 Republican convention in St. Paul, Minnesota, where authorities stayed vague about the size, rules, and location of a protest zone until it was placed on the side of the convention center opposite the main entrance.52 Similarly, during the Democratic convention in Denver, a free speech zone was established in a parking lot seven hundred feet from the Pepsi Center, walled off on three sides by concrete barriers and chain-link fence. Afterward, the Denver police union issued a T-shirt picturing a beefy, helmeted cop looming like a giant above Denver’s skyline, grinning eerily and wielding a huge club. “We Get Up Early,” said the shirt, “to BEAT the Crowds: 2008 DNC.”53
Judges don’t usually interfere, because they’re loath to tie the hands of an agency charged with protecting the president and presidential candidates. The law gives considerable latitude to the secretary of Homeland Security, who oversees the Secret Service, “to prescribe regulations governing ingress or egress to such buildings and grounds and to posted, cordoned off, or otherwise restricted areas where the President or other person protected by the Secret Service is or will be temporarily visiting.”54
Oddly, the Secret Service didn’t use that authority when gun-toting demonstrators turned up outside town hall meetings held by President Obama. In August 2009, a protester legally carrying a registered handgun strapped to his leg was allowed on the grounds of a church, along a road leading to a New Hampshire high school where Obama was speaking.55 Later that month, a dozen gun-rights advocates carrying pistols, and one with an assault rifle, gathered outside an Obama speech in Phoenix.56 Under Bush, protesters’ words were dangerous; under Obama, apparently, protesters’ guns were not.
Bush’s “Presidential Advance Manual” was not rep
ealed during Obama’s first years in office, although citizens who disagreed seemed better able to get into Obama town meetings. Sheryl Gay Stolberg, a New York Times White House correspondent, observed “the political stacking of such events by the White House, which controls the flow of tickets to insure a friendly audience in the hall. In this regard Obama seems slightly more open than Bush, but only slightly,” she said. “With Bush there was effectively no chance of an unfriendly questioner. With Obama the deck is stacked, but critics can at least get in the hall if they make an effort.”57 Protest zones were still established to keep demonstrators at a distance. In a report card on Obama’s civil liberties record, these two items—abandoning both the manual and the “free speech zones”—were listed by the ACLU in a long series of steps not taken.58
On February 15, 2011, as Secretary of State Hillary Clinton called for freedom of expression on the Internet, her words struck a bizarre counterpoint to the scene just several rows in front of her. When she arrived at a small auditorium at George Washington University, members of the audience—each carefully vetted and invited by name—stood and applauded. As they took their seats, Ray McGovern remained standing and turned his back on her. He was seventy-one. For twenty-seven years he had been a Soviet analyst for the CIA, and before that an army intelligence officer. He opposed the wars now being waged. After he had entered through a metal detector, he removed a shirt covering a black T-shirt with white letters reading, “Veterans for Peace.”
Egyptian protesters had just overthrown Hosni Mubarak a few days before, and Clinton combined praise for the demonstrators with a warning for oppressive regimes. “A few minutes after midnight on January twenty-eighth, the Internet went dark across Egypt,” she said as McGovern stood in silence, facing the back wall. “During the previous four days, hundreds of thousands of Egyptians had marched to demand a new government. And the world, on TVs, laptops, cell phones, and smart phones, had followed every single step. Pictures and videos from Egypt flooded the Web.”
McGovern kept his pose and drew no complaints, he said. “The guy I was standing in front of was politely looking around me. He didn’t say anything.” Clinton was trying to look around him, too. The video shows her head swinging side to side, her eyes sliding quickly past the center of her field of vision, where he stood in what he called “silent witness.”
“Then the government pulled the plug,” she continued. As she spoke that sentence, two men grabbed McGovern roughly, one a huge guy in a suit, the other a university guard. They did not ask him to leave or sit down, just dragged him across four women to the aisle. Clinton didn’t flinch. Instead, a slight smile touched her lips. “Cell phone service was cut off,” she went on evenly, “TV satellite signals jammed, and Internet access was blocked for nearly an entire country.” McGovern was being wrenched and hurt in front of her.
“When I was grabbed, it was a shock,” he told me. “It was such a shock I forgot the Code Pink manual, which says as soon as you’re grabbed, you shout out the reason you’re there.” After a few seconds, as he was hauled out of camera range, he shouted, “This is America? This is America!” but Clinton continued smoothly.
“The government did not want the people to communicate with each other,” she declared, as cool as ice, “and it did not want the press to communicate with the public.”
“The whole thing was like out of a short story by Franz Kafka,” McGovern remarked. “She didn’t miss a beat. She’s a real pro.”
Outside in the hallway, he said, the beefy security man locked his wrists with not one but two pairs of handcuffs, clamped so tightly that he bled all over his trousers. He complained that a titanium plate, implanted after a compound fracture in his left wrist, might be dislodged. He was turned over to the D.C. police, was locked up for three and a half hours without medical treatment, and went to an emergency room after being released. Both arms, his left hand, and his left leg were badly bruised. “I’m told that NFL football players who don’t make the final cut very often end up in the State Department security force or the Secret Service,” he remarked, “and I can believe that.”
WHEN RIGHTS CLASH
Neither end of the political spectrum can be counted on for unwavering support of First Amendment principles when emotions run high. Activists on both the left and the right have tried to stifle speech they oppose, especially when demonstrators have become personal and threatening. Then judges and legislators have stepped in. After a rash of bombings and arson attacks on abortion clinics, and following the 1998 murder of Dr. Barnett Slepian in upstate New York, government experimented with limitations on demonstrations. Operation Rescue and other aggressive anti-abortion protesters—who surrounded and blocked clinics, screamed at women entering, and waved pictures of aborted fetuses—found themselves bound by intricate, complex buffer zones imposed by courts and legislatures, and then litigated up to a divided Supreme Court.
In a series of opinions, the justices upheld modest buffers of fifteen to thirty-six feet from abortion clinic entrances but struck down zones around doctors’ houses, which had become targets of protest and violence. The Court approved prohibitions against loud noise within earshot of a clinic and within three hundred feet of clinic employees’ homes, but rejected bans on peaceful demonstrations within three hundred feet of clinics or residences. It overturned a moving buffer zone of fifteen feet from any patient entering or leaving, as an infringement on the speech of peaceful demonstrators lining the street or sidewalk. But the justices later left intact a Colorado statute requiring protesters to stay eight feet away from any visitor who was within one hundred feet of a clinic.59
The Court went back and forth on whether racketeering and extortion laws designed to fight organized crime could be used by abortion clinics to obtain injunctions against protesters, or by federal prosecutors to bring criminal charges. Two powerful statutes were invoked: RICO, the Racketeer Influenced and Corrupt Organizations Act, which carries twenty-year sentences for attempting to close down businesses (clinics, in this case), and the Hobbs Act of 1946, which punishes the obstruction of interstate commerce by force or extortion. In a clash of two rights—to abortion and to free speech—clinics and the National Organization for Women argued that Operation Rescue was trying to shut down the clinics. Free speech advocates worried that invoking such draconian laws could curb any kind of dissident protest, and on the third consideration of the case, in 2006, the justices decided unanimously that RICO and Hobbs could not be used against anti-abortion demonstrators.60
A more focused statute remained in effect: the 1994 Freedom of Access to Clinic Entrances Act, which provided stiff fines and a year in jail for the first offense of damaging a clinic or intimidating or interfering with anyone “obtaining or providing reproductive health services.”61 It was an attempt to draw a reasonable line between pure speech and harassing conduct.
In 2005, at the height of the Iraq war, cruel signs celebrating God’s wrath began appearing outside the funerals of young Americans who had come home in flag-draped coffins. “Thank God for Dead Soldiers.” “Thank God for Sept. 11.” “Thank God for IEDs,” a reference to the improvised explosive devices, planted at roadsides, that were causing so many casualties.
The country’s principal sin was condoning homosexuality, the demonstrators preached, which brought the curse of God down upon “Sodomite America” and its people. “God Hates Fags,” read the signs. “God Hates the U.S.A.” “Thank God for AIDS.” Every death was hailed as retribution. The protesters invaded the mourners’ grief, shouting at them that every soldier was burning in hell.
Rarely if ever in American history has a fringe group’s ugly speech caused such widespread fury—and such a rapid barrage of restrictions on expression. Only fifty-five people were traveling the country and picketing in small groups, but in about two years at least thirty-eight states and the federal government enacted laws creating buffer zones and time limits on demonstrations near funerals.62 Then a federal jury in Maryland hi
t the protesters with a $10.9 million damage award for invading a father’s privacy and causing emotional distress, and a Nebraska prosecutor reached way beyond the Constitution in charging one of the leaders with defiling the flag and endangering her child by having him stand on the Stars and Stripes. The Maryland case went to the Supreme Court.
Most of the placards were carried by members of an extended family from Kansas headed by Fred Phelps, who had founded the Westboro Baptist Church in Topeka with a mission of “opposing the fag lifestyle of soul-damning, nation-destroying filth,” in the words of one of its Web sites, godhatesfags.com. Marked with an inverted American flag on its Web address, the home page declared gleefully: “God is America’s enemy, dashing your soldiers to pieces.”
Combining its rants against gays with slurs against Jews, blacks, and the Catholic Church (“the greatest pedophile machine in the world”), the group made sophisticated use of the Internet as a vehicle of free speech, linking its pages to self-produced music videos and flashing headlines inviting visitors into a netherworld of twisted argument.
“ ‘God Hates Fags’ is a profound theological statement,” Phelps insisted in a recorded screed that oozed with scripture. To the tune of “God Bless America,” an ensemble sounding like a church choir sang “God hates America, land of the fags. He abhors her, deplores her, day and night, all his might, all his ways.… God hates America, the filthy faggots’ home.”
If you clicked on an icon saying “Thank God for another tragedy that has stricken Wisconsin …,” you saw an exultant message about three college students who died in a housing fire in 2008.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 35