60. The DOT finding stated: “The fact that other passengers or crew have a feeling of discomfort or uneasiness that can be attributed to an individual’s skin color, race, ethnicity or clothing that may be indicative of an individual’s race, ethnicity or religion (e.g., t-shirt with Arabic writing, turban) is not a justifiable reason to deny boarding to that individual or to require that individual to accept restrictions such as sitting in the rear of the aircraft in order to be allowed to fly.” ACLU, “Department of Transportation Completes Investigation of JetBlue,” March 19, 2008.
61. Jarrar, Complaint, citing 42 U.S.C. § 1981 and 42 U.S.C. § 2000d. In its answer, JetBlue claimed immunity under the Aviation and Transportation Security Act of 2001, Airport Security Improvement Act of 2000, Air Transportation Security Act of 1974, Federal Aviation Act, and Airline Deregulation Act.
62. Niki had immigrated to the United States as a child in the 1980s, had become a citizen in the 1990s, and had chosen to study Arabic in Jordan on her way to a Ph.D. There she met Jarrar, who had fled to Jordan from Iraq during the maelstrom following the 2003 American invasion. They married and decided to escape from Jordan’s difficult economy. As her husband, he sailed through the U.S. immigration process and arrived in 2005.
63. ACLU, “ACLU Sues over Unconstitutional Airport Detention and Interrogation of College Student Carrying Arabic Flashcards,” Feb. 10, 2010, with links to court documents at http://www.aclu.org/national-security/aclu-sues-over-unconstitutional-airport-detention-and-interrogation-college-studen.
64. ACLU, Freedom Under Fire: Dissent in Post-9/11 America, May 2003, pp. 5–6.
65. Kris Axtman, “Political Dissent Can Bring Federal Agents to Door,” Christian Science Monitor, Jan. 8, 2002; ACLU, “Caught in the Backlash: Stories from Northern California,” p. 14.
66. Axtman, “Political Dissent Can Bring Federal Agents to Door.”
67. Charlie Brennan, “Arrest over Cheney Barb Triggers Lawsuit,” Rocky Mountain News, Oct. 3, 2006; Howards v. Reichle, complaint, Civil Action No. 06-CV-01964-WYD-CBS (D. Colo. 2006).
68. Mike Stallings to Marcia Perez, Oct. 4, 2001. Stallings, reached by phone and contacted by e-mail, declined to answer questions.
69. Bill Carter and Felicity Barringer, “In Patriotic Time, Dissent Is Muted,” New York Times, Sept. 28, 2001, p. A1; Barry Didcock, “The Man Who Fell to Earth—Madman or Genius,” Sunday Herald (Glasgow), March 27, 2005.
70. Howard O. Stier, “Bush Portrait Draws Criticism for Its Details, Not Its Subject,” New York Times, Dec. 13, 2004, p. A25.
71. ACLU, Freedom Under Fire, p. 5.
72. Letter and news release from ACLU, July 16, 2003. The case overturning the sodomy law was Lawrence v. Texas, 539 U.S. 558 (2003).
73. ACLU, Freedom Under Fire, p. 7
74. In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Court ruled unanimously that despite its earlier opinions granting shopping centers authority to curb picketing and pamphleteering, California could interpret its state constitution to define a mall as a public forum where freedom of expression was guaranteed. See also Samuel H. Weissbard and Camellia K. Schuk, “States Speak Out on Free Speech in Malls,” Commercial Investment Real Estate, Nov.—Dec. 1999.
75. Slightly revised, the policy as of Feb. 12, 2010, stated: “The wearing of apparel which tends to provoke a disturbance, negatively impact the interest of merchants, or engage shoppers or other legal invitees in conflict is prohibited.” No official of Crossgates or the mall would elaborate on the current policy toward political messages. The guard who signed the trespassing complaint, Robert Williams, said he was fired, even though he claimed to be following the orders of the assistant director of security. Bruce Scruton, “Guard Says He Lost Job in T-Shirt Flap,” Albany (N.Y.) Times-Union, March 8, 2003.
76. Dixie Chicks publicity background paper at http://www.frontpagepublicity.com/dxc/bio.html.
CHAPTER SEVEN: A REDRESS OF GRIEVANCES
1. Order Denying Defendant’s Motion to Lift or Modify Stay-Away Order, Judge John Ramsey Johnson, Superior Court of D.C., 2007 CMD 10758, Dec. 14, 2007. Johnson was a former prosecutor and Clinton appointee.
2. The stay-away order addresses a modern expansion of the conditions under which a defendant can be jailed pending trial. Traditionally, the sole reason was to guarantee her appearance in court; someone deemed a flight risk would be either held or released on high enough bail that the penalty for fleeing would outweigh the possible consequences of appearing. Gradually, many state legislatures and Congress added a second reason for denying release: the likelihood that the crime would be repeated. The stay-away order is designed to reduce that possibility.
3. “He’s Back with His Impeachment Message,” News & Observer, Oct. 20, 2007.
4. D.C. Code § 22-405(b): “Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.” Defendant has a right to a jury trial only where the maximum sentence is over 180 days, so a judge alone can hear such a case.
5. Karen Matthews, “Peace Activists Denied Entry to Canada Will Try Again Thursday,” AP, Oct. 24, 2007. They were denied again.
6. Murphy was never able to mount a challenge, because on the eve of her trial she was arrested while driving on Second Street, the boundary of her stay-away zone, and charged with contempt of court for violating the exclusion order. Facing jail time, she agreed to the prosecutor’s offer to lift the order in exchange for a guilty plea to unlawful conduct and a $100 fine.
7. Jeannette Rankin Brigade v. Chief of Capitol Police, 409 U.S. 972 (1972), summarily affirmed, and United States v. Grace, 461 U.S. 171 (1983), respectively.
8. Lederman v. United States, Nos. 01-5157 and 01-5158 (D.C. Cir. 2002).
9. Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), overruling Jersey City’s denial of a public hall for a labor rally. See David M. O’Brien, Constitutional Law and Politics: Vol. 2, Civil Rights and Liberties, Fifth Ed. (New York: Norton, 2003), pp. 633–40.
10. Edwards v. South Carolina, 372 U.S. 229 (1963).
11. Cox v. Louisiana, 379 U.S. 536 (1965).
12. Police Department of City of Chicago v. Mosley, 408 U.S. 92 (1972).
13. Boos v. Barry, 485 U.S. 312 (1988), which overturned a law barring demonstrations within five hundred feet of an embassy.
14. Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), regarding placards in buses.
15. Adderley v. Florida, 385 U.S. 39 (1966).
16. Flower v. United States, 407 U.S. 197 (1972), and Greer v. Spock, 424 U.S. 828 (1976).
17. United States v. Kokinda, 497 U.S. 720 (1990).
18. International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), upholding a ban on solicitation at New York Port Authority airports. An earlier opinion, in Board of Airport Commissioners of Los Angeles v. Jews for Jesus Inc., 482 U.S. 569 (1987), found a complete ban on First Amendment activities at Los Angeles International Airport unconstitutional but did not reach the question of whether terminals were public forums.
19. “Man’s Anti-Bush Bumper Stickers Prompt Visit by Secret Service,” AP, Sept. 1, 2001, http://www.firstamendmentcenter.org/news.aspx?id=4666.
20. Cox v. New Hampshire, 312 U.S. 569 (1941). In Ward v. Rock Against Racism, 491 U.S. 781 (1989), the justices also ruled in favor of New York City’s requirement that performers in Central Park use a city sound system and engineer.
21. Walker v. City of Birmingham, 388 U.S. 307 (1967). Opinion by Potter Stewart, with Earl Warren, William J. Brennan Jr., and Abe Fortas in dissent.
22. Monica Davey, “Subpoenas on Antiwar Protest Ar
e Dropped,” New York Times, Feb. 11, 2004. Statement by American Association of University Professors, Feb. 11, 2004, http://www.aaup.org/AAUP/comm/rep/DrakeSubs.htm.
23. Stone, Perilous Times, p. 556. The Supreme Court ruled nonjudiciable the contention that speech was chilled by military surveillance of lawful domestic activity. Laird v. Tatum, 408 U.S. 1 (1972).
24. Nick Madigan, “Documents Show State Police Monitored Peace and Anti–Death Penalty Groups,” Baltimore Sun, July 18, 2008. Documents were released by the state’s attorney general in response to a request by the ACLU of Maryland under the Maryland Public Information Act. See http://www.aclu-md.org/Index%20content/NoSpying/NoSpying.html.
25. Office of the Inspector General, Justice Dept., “A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups,” Sept. 2010.
26. “Pennsylvania Intelligence Bulletin No. 131, Aug. 30, 2010,” ProPublica, http://www.propublica.org/documents/item/pennsylvania-intelligence-bulletin-no.-131-aug.-30-2010. The complaint about false leads was made by Major George Bivens, head of the Bureau of Criminal Investigations, about the Institute of Terrorism Research and Response. Brad Bumsted, “State Police: Terror Bulletins Sent Them on Wild Good Chases,” Pittsburgh Tribune-Review, Sept. 27, 2010, http://www.pittsburghlive.com/x/pittsburghtrib/news/breaking/s_701509.html.
27. Documents obtained through a lawsuit by the ACLU of Colorado, http://aclu-co.org/spyfiles/samplefiles.htm.
28. Larry Valencia, Statement, Denver Police Dept., May 12, 2000, http://aclu-co.org/spyfiles/Documents/Valencia_undercover.pdf.
29. Stone, Perilous Times, p. 493. See also displays and reports in the National Civil Rights Museum, Memphis.
30. “Information on ‘Rukus’ and Catholic Workers Group,” FBI Memo 266D-LA-226745, May 23, 2001. “Catholic Workers Group” may refer to the Los Angeles Catholic Worker, an organization that often demonstrates at the base.
31. In 2007, two years after the revelations, the Pentagon announced plans to shut down the database of TALON (Threat and Local Observation Notices). “ACLU Applauds Decision to Shut Down Pentagon Database of Secret Information on Peaceful Groups,” Aug. 21, 2007.
32. ACLU, “No Real Threat: The Pentagon’s Secret Database on Peaceful Protest,” Jan. 17, 2007, http://www.aclu.org/safefree/spyfiles/27988pub20070117.html. The full report, with original documents, is at http://www.aclu.org/pdfs/safefree/spyfiles_norealthreat_20070117.pdf.
33. The cleric was Anwar al-Awlaki, described by the terrorism specialist Bruce Hoffman at Georgetown University as “a vessel for the message of al-Qaeda whose goal is radicalizing others.” Scott Shane and David Johnston, “Accused Gunman’s Exchanges with Cleric Raised Questions, Not Alarms,” New York Times, Nov. 12, 2009, p. A22.
34. Marianne Kyriakos, “Roosevelt Bridge Blocked in Protest of D.C. Budget,” Washington Post, Sept. 21, 1995.
35. Mary Cheh, “Legislative Oversight of Police: Lessons Learned from an Investigation of Police Handling of Demonstrations in Washington, D.C.,” Journal of Legislation 32 (2005), p. 10.
36. Killmon et al. v. City of Miami et al., described by the Center for Constitutional Rights at http://ccrjustice.org/ourcases/current-cases/killmon%2C-et-al.-v.-city-miami%2C-et-al. A filmmaker, Carl Kesser, was shot in the head with a beanbag rifle, and the right side of his face was left permanently paralyzed by a ball that lodged in his temple. He won a settlement of $180,000 from the city. City of Miami Civilian Investigative Panel, Report on the Free Trade Area of the Americas Summit, July 20, 2006, http://www.miamigov.com/cip/Downloads/FTAAReport.pdf. The panel found that the Miami police “did not adequately protect the First Amendment rights of demonstrators.” It also found that “more time and attention were devoted to training personnel to protect property rather than persons, and even less training time was spent addressing the constitutional protections guaranteed to all.” The police refused to give the panel its operational plan, and a court refused to order it disclosed.
37. In Re the City of New York, on a petition in Hacer Dinler et al. v. The City of New York, No. 10-0237-op (2nd Cir. 2010). The district court, which ordered the field reports’ release during the discovery phase of a civil suit, was reversed on a writ of mandamus issued by a unanimous three-judge panel of the Second Circuit. In an opinion written by Judge José Cabranes, the panel ruled that the law enforcement privilege, akin to executive privilege, prevailed in this case. Otherwise, “we would risk discouraging law enforcement agencies from conducting undercover investigations (or from keeping records of those investigations),” and “other police officers may be less willing to become undercover agents if they fear that their identities may be disclosed in court proceedings.” Ongoing “law enforcement techniques and procedures” would be compromised, the judges decided. Those arrested wanted to prove that the city’s “mass arrest policy” was unjustified by the intelligence gathered through undercover work. The appeals court found, after reviewing the field documents, that they did not undermine the end user reports, which had already been provided to the parties, but reinforced the city’s contention that “a substantial threat of disruption and violence” existed. The field reports would therefore not be of “compelling need” to those suing the city.
38. Handschu v. Special Services Division, S.D.N.Y. 71 Civ. 2203 (CSH). The consent decree initially required approval of surveillance by a three-member panel, the Handschu Authority, made up of the first deputy police commissioner, the deputy commissioner for legal matters, and a civilian appointed by the mayor. The decree was eviscerated in 2007 when a judge required that any plaintiffs show a pattern of abuse beyond a specific instance. See ACLU fact sheet at http://www.nyclu.org/node/1084 and Tom Perotta, “New York Police Request Broader Surveillance Rights,” New York Law Journal, Sept. 27, 2002.
39. NYPD intelligence documents, memos, and manuals are at http://www.nydu.org/rncdocs. See N.Y. City Police Dept., “Police Student’s Guide: Maintaining Public Order,” July 2004, and “Legal Guidelines for the Republican National Convention,” March 10, 2004.
40. “RNC Intelligence Update,” Oct. 9, 2003, p. 38, http://www.nyclu.org/files/Pre-RNC%20Surveillance%20Documents%20Section%201.pdf. See also http://www.criticalresistance.org/.
41. Report CJB No. 156-2004-0016 memo of May 4, 2004, from Commanding Officer, Criminal Justice Bureau, to RNC Coordinator.
42. “Cops Put Brakes on Bike Protest,” Wired, Aug. 31, 2004; Geeta Dayal, “Bikes Against Bush Gets a Flat,” Village Voice, Aug. 24, 2004; See also Legal Guidelines, pp. 13–14, 16, and N.Y.C. Admin. Code 10-117, N.Y.C. Traffic Rules 4-07(c)(3)(i).
43. Police Student’s Guide: Maintaining Public Order, July 2004, http://www.nydu.org/rncdocs.
44. White House, “Presidential Advance Manual,” Oct. 2002. Most of the 103 pages were blanked out, or “redacted.”
45. Rank et al. v. Jenkins, No. 07-CV-01157, D.C. District, Complaint, pp. 3–5.
46. “ACLU Calls Government Settlement in Anti-Bush T-Shirt Case a Victory for Free Speech,” Aug. 16, 2007, http://www.aclu.org/freespeech/protest/31331prs20070816.html.
47. Their suit was dismissed by federal district court judge Wiley Y. Daniel, a Clinton appointee, who ruled that their constitutional rights were not violated. ACLU, “Federal Court Upholds Exclusion of Denver Residents from Bush Speech Based on Political Expression,” Nov. 7, 2008, http://www.aclu.org/freespeech/protest/37727prs20081107.html. A Tenth Circuit panel upheld the dismissal, 2–1. “2 Thrown Out of Bush Event Can’t Revive Lawsuit,” AP, Jan. 29, 2010, http://www.firstamendmentcenter.org/news.aspx?id=22557. The Supreme Court refused to review the case.
48. Rank, Complaint, pp. 5
–9. The Wisconsin incident involved Leslie Weise and Alex Young, who joined the Ranks in their lawsuit as complainants.
49. ACLU, “Free Speech Under Fire: The ACLU Challenge to ‘Protest Zones,’ ” Sept. 23, 2003.
50. Police Student’s Guide.
51. Acorn et al. v. City of Philadelphia et al., No. 03-CV-4312 (E.D. Pa. 2003).
52. A lawsuit on the issue by protest groups failed in federal court. “District Court Denies Motion for Temporary Injunction in Demonstration Zone Lawsuit,” ACLU of Minnesota release, Aug. 26, 2008.
53. See ACLU of Colorado, http://www.aclu-co.org/news/2008news.htm, and ACLU of Minnesota, http://www.aclu-mn.org/issues/freedomofspeechpress.htm. Also, 2009 Jefferson Muzzles to both the Republican and the Democratic Parties, Thomas Jefferson Center for the Protection of Free Expression, http://www.tjcenter.org/muzzles/muzzle-archive-2009/#item01.
54. Since 9/11, the Department of Homeland Security has designated each convention as a “National Special Security Event.” Secret Service authority is contained in 18 U.S.C. § 1752(d)(2).
55. Rachel Weiner, “Protester with Gun Outside Obama Town Hall,” Huffington Post, Aug. 11, 2009.
56. “Gun-Toting Protesters, Including One with Assault Weapon, Mill Outside Obama Speech in Arizona,” AP, Aug. 18, 2009.
57. Sheryl Gay Stolberg, e-mail to author, Feb. 1, 2010.
58. ACLU, “America Unrestored: An Assessment of the Obama Administration’s Fulfillment of ACLU Recommended ‘Actions for Restoring America,’ ” Jan. 2010, p. 57.
59. Madsen v. Women’s Health Center, 512 U.S. 753 (1994); Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997); and Hill v. Colorado, 530 U.S. 703 (2000).
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 50