First Amendment Blues
Police Tactics Suppress Free Speech
By Heidi Boghosian and Abby Scher
Miles Swanson was a legal observer monitoring whether police stuck to the law in their treatment of protestors at the November 2003 Free Trade Agreement of the Americas meeting in Miami. That was the meeting where busloads of steelworkers were stopped before they could join the demonstrations, while others protesting peacefully on the streets were shot with rubber bullets.
Swanson is active in the National Lawyers Guild, a progressive bar association whose members often serve as legal observers at protests. Even before the demonstration, police featured him in a PowerPoint identifying key people coming to Miami for the protests. Then he became victim of a "snatch squad," a new police tactic where officers drag protestors off, having singled them out based on their perceived political ideology. Does a protestor dress in black like an anarchist? Is she a ringleader? Better watch out.
We now know more about these tactics and their spread thanks to lawsuits around the country challenging federal, state and local police targeting of activists. Because some of their worst - and most revealing - offenses took place around the party conventions of 2004 and 2000, progressive lawyers are drawing lessons from the past to prepare for defending constitutional free speech rights in another election year. Even now the U.S. Secret Service and other agencies are preparing for the Democratic Convention, August 25-28 in Denver and the Republican Convention, September 1-4 in St. Paul. Whether or not the lawsuits - or the softening of the hysteria that accompanied Bush's drive to war - will dampen the police response, those of us defending free speech understand their playbook and will come prepared.
These new tactics serve to chill speech even before concerned citizens have spoken. Mass arrests round people up even as they are assembling. Police deny permits for demonstrations based on who is doing the demonstrating and what they want to say. Squads force demonstrators into constricted "free speech" zones, using pop-up police lines to trap protesters before conducting mass illicit arrests and detentions for those caught on the wrong side of the line. They routinely use supposedly nonlethal weapons like rubber or wooden bullets, pepper spray, and Tasers on people gathering peacefully. Less visibly but no less chilling, police used fire code violations as a way to close down activists' organizing centers, as in Philadelphia before the 2000 Republican convention.1
At the federal level, civil libertarians pay a lot of attention to the way the Bush Administration has enlarged the scope of spying on citizens behind closed doors, with or without the approval of Congress. With the aid of the Federal Bureau of Investigation, organized regionally through Joint Terrorism Task Forces, the same is happening at the local and state levels. New York City, with its own homeland security director, is a lead innovator. To avoid public scrutiny, the city's police department finds unconventional channels to enact rules that subtly constrict free speech. In 2006, the NYPD proposed requiring permits for a host of mundane activities such as riding bicycles and gathering with friends on sidewalks - prompted by an increased suspicion of bicycle activists who ride monthly in "Critical Mass" events to promote biking and safer city streets. After a judge ruled the proposed parade permit law was beyond the bounds of the constitution and a burden on free expression, the NYPD proposed even more impractical regulations which were eventually enacted. By making protest a threatening or difficult experience - as with free speech zones and pop-up police lines - police are discouraging people from turning out to peaceably assemble and present their views.
The New York Times and others raised an outcry when the city denied demonstrators a permit to gather on the Great Lawn of Central Park during the 2004 Republican Convention. A lawsuit failed to win the permit in time for the convention - clearly legal delays are yet another mode of repressing free speech. More commonly, government agencies raise permit fees or require that the groups sponsoring the gathering take out astronomical levels of insurance. The Pentagon demanded thousands of dollars in fees from those organizing a March 2007 antiwar protest, only to back down in the face of a threatened lawsuit.
There is another, insidious, form of pre-emptive policing: intimidating or preventing concerned citizens from joining a demonstration. Sounding a media drumbeat about all the trouble activists are planning is one way the authorities try to discourage people from coming out. Visiting and intimidating people is another. The FBI used both tactics before the 2004 Republican convention when agents dropped in on activists around the country who the FBI claimed would have information on potential violence. As the New York Times reported at the time:
The article went on to quote Sarah Bardwell of Denver, a 21-year-old intern of American Friends Service Committee who was visited: "The message I took from it was that they were trying to intimidate us into not going to any protests, to let us know that,'hey, we're watching you.'" The FBI interviewed dozens, and three St. Louis, Missouri men represented by the local American Civil Liberties Union (ACLU) said they were trailed by agents. An FBI spokeman explained, "We vetted down a list and went out and knocked on doors and had a laundry list of questions to ask about possible criminal behavior. No one was dragged from their homes and put under bright lights." An April 2006 report by the FBI's Office of the Inspector General dismissed the idea that the agency had done anything improper or encroached on people's First Amendment rights.
Police Tamper with Evidence
One of the most disturbing under-the-radar techniques used to impede free speech is police tampering with evidence in order to justify roundups of peaceful protestors. Once again, the NYPD is the leader in this area. During the 2004 Republican National Convention, police doctored video evidence to justify the unlawful arrests of peaceful bystanders and protesters, giving those altered tapes to defense attorneys and the courts, and engaging in perjury and evidence tampering. Alexander Dunlop was one person exonerated after it came out that the police had given his lawyer a video of his arrest during the RNC which had been edited to justify their claim that he had resisted.6 An unedited version clearly showed Dunlop asking a police officer for directions and that he was not involved with a nearby demonstration.
The extent to which such evidence tampering is occurring in police departments around the country is difficult to know. Had it not been for the volunteer-based group, I-Witness Video, the doctoring would likely not have been discovered. Over 200 I-Witness volunteers documented arrests and police activity at the protests, making sure that their video evidence would be usable, if needed, in later court proceedings. Working in alliance with legal observers from the National Lawyers Guild who monitored most of the RNC demonstrations, their videos helped vindicate several people who were falsely arrested on disorderly conduct charges, and were used in the defense of approximately 400 of the 1,806 people arrested during the Convention. Eileen Clancy was the I-Witness Video volunteer who discovered the tampering on Dunlop's tape:
In addition to physical evidence proving video tampering, other examples of police perjury are now out in the open, thanks to litigation. At a February 2006 Critical Mass ride, NYPD assistant chief Bruce Smolka pulled graduate student and Guild Legal Observer Adrienne Wheeler off her bicycle, pinning her to the ground and causing several injuries. He did not identify himself as a police officer, nor did he ask her to stop her bicycle before hauling her to the ground. Police issued a traffic ticket to Wheeler, based on police testimony that she was riding the wrong way on a one-way street.
As was proven later in court, the officer who gave a sworn statement saying she personally say her riding the wrong way, had lied. In September 2006, a traffic court judge dismissed charges against Wheeler after NYPD Officer Alfred Ortiz admitted he gave false statements under oath. The National Lawyers Guild New York City Chapter provided videotapes of the incident to the Civilian Complaint Review Board (CCRB) in March showing clearly that Smolka did not identify himself as an officer nor issue any warning beforehand.
Infiltration and Provacateurs
Beyond police perjury, police infiltration and provocation continues to be a difficult-to-monitor constraint on free speech. Infiltration and provocation change the tone of protest by initiating violence falsely attributed to protesters. Using provocateurs, police can actually change the speech that political groups are trying to communicate.
Jim Dwyer of the New York Times drew on Clancy's forensic video analysis to reveal police sparking confrontations by arresting police officers who were disguised as activists, both at the RNC and at Critical Mass bicycle events.8 Bystanders objected to the false arrests, and the police thus succeeded in creating a conflict and an unruly situation. As history has shown, during the McCarthy period and other moments in U.S. history, knowing that political activities could be under scrutiny can intimidate people and stop them from stepping forward with their political opinions. Yet infiltration has become widespread, at least in New York City and California, where the ACLU of Northern California catalogued numerous examples in a July 2006 report.9 In California, Camille Russell, a Fresno schoolteacher, discovered Peace Fresno was infiltrated while reading an obituary of a sheriff's deputy killed in a motorcycle accident who was a member of the group under another name.10 Campus anti-war activists at Fresno State, a United Food and Commercial Workers at a labor rally protesting Safeway supermarkets in Contra Costa, and other activists have also stumbled over plainclothes or undercover officers at events.
In March 2007, Jim Dwyer of the New York Times broke the story of the secret surveillance going on, as New York City police detectives traveled the world to spy on and infiltrate groups that might attend RNC protests.11 Recently released records show they were even interested in the FTAA protest where Miles Swanson was arrested.
Since 2003, New York police officers posed as activists and attended meetings of political, artistic, and church groups, made friends and exchanged email messages, and, during the RNC confrontations, reported daily with the NYPD Intelligence Division. They also spied on a city councilman, Sean Combs, Jay-Z, Alicia Keys, and other stars connected with the Hip Hop Voters Summit. The pages of intelligence reports - with many sections blacked out and unreadable - were only released this spring, leaving you wondering how they saw a threat in the comedy troupe Billionaires for Bush, or Brooklyn Parents for Peace.
The new chairman of the House Homeland Security Committee, Bennie Thompson, met with the NYPD in May 2007 to express his concern that police spying had violated civil liberties and gone into states and countries outside of its jurisdiction.12 The New York Police Commissioner continues to say the RNC was his department's finest hour, and continues to ignore a federal court order to release its intelligence records from that period in response to an NYCLU lawsuit.13
Weakening Old Limits on Surveillance
The NYPD widened its spying on political groups and people in 2003 despite a court ruling restricting its power to do so. It burst the bounds of limits placed on it by the courts following the exposure in the 1970s of decades of spying abuses, not just by cities but by the FBI's COINTELPRO (counterintelligence program). Police departments across the country faced consent decrees - agreements to modify unconstitutional surveillance and other policies - that were diluted or dropped before but especially after 9/11 under Democratic and Republican administrations. Police returned to the bad old days, once again instilling a fear in people's minds that their antiwar or other political activities are being watched.
Soon after September 11th, the NYPD asked U.S. District Court Judge Charles Haight to lift the guidelines for investigating religious, political or other "associational" activity set out in 1986 in the wake of the lawsuit Handschu v. Special Services Division.14 The settlement prohibited, among other things, creating files on groups or individuals based solely on their political, religious, sexual, or economic preference. It required police to submit a request for spying to a three-person panel and to show that the group or person had "criminal intent." Haight agreed that the new threat of terrorism justified changing the consent decree - dropping the need to go to the panel or demonstrate criminal content - and he instructed the police instead to adopt guidelines modeled on new ones created by Bush's Justice Department to govern the FBI's political investigations. What that means legally has been in dispute in the courts since early 2004. Nonetheless, the police took the modified decree as an open door for widespread infiltration and surveillance of political groups.
Denver, the location of the upcoming Democratic convention, has its own sordid history to tell. Its police were spying on the local Amnesty International chapter, American Friends Service Committee, and Chicano activists for years until it came out late in 2002 when someone leaked a printout of some of the records. Following an ACLU lawsuit, the Denver police agreed to purge their files and stop spying. Yet officials worked hard to save funding for Colorado's "fusion center," where Denver police, along with federal and state agents, sift through local and national intelligence and other information to find signs of terrorist threats. Even as local police go tocourt to remove themselves from judicial constraints over their spying, the feds poured millions of dollars to set up such intelligence centers outside of these courts' jurisdiction from coast to coast.
Subpoenas as Intimidation
In the past eight years, we have seen authorities intimidating activists by issuing them subpoenas to appear before a grand jury. Environmental and animal rights activists but also anti-war activists have found themselves hauled before these chambers. The FBI has actually admitted that it uses both email monitoring and subpoenas to gather information on activists.
Here is only one example that hit close to home to one of the authors, who is executive director of the National Lawyers Guild. In October 2003, the NLG received word from a member in Des Moines, Iowa that local authorities had told her that her e-mail was likely being monitored. On February 3, 2004 that same member, Sally Frank, a law professor and an advisor to the Guild chapter at Drake University, called to say that the authorities had issued subpoenas for four antiwar protesters in Des Moines to appear before a grand jury. Federal prosecutors also subpoenaed Drake University for records of its National Lawyers Guild chapter, including names of officers, information relating to an antiwar training in November 2003 entitled "Stop the Occupation! Bring the Iowa Guard Home," and reports dating back two years. The government also issued a gag order on employees of the University. These actions puzzled the locals, mobilized the Guild, and quickly attracted national attention, because they seemed to target individuals based on their political activity. After the U.S. Attorney's Office took the unusual step of issuing a statement confirming its investigation, the Guild won its motion to quash the subpoena on First Amendment grounds.
Preparing for 2008
Long drawn out lawsuits to defend civil liberties may be victorious, eventually, but rarely soon enough to allow the people to have their say, when they want to say it. So lawyers are working with activists to prepare ahead of time for possible police responses to the next party conventions.
In St. Paul and Denver, Guild and ACLU lawyers are already negotiating with public officials to prevent demonstrators from being channeled into cramped, fenced off "free speech zones" distant from events. As one lawyer reported, "In a free society, a security zone that corrals all dissenting voices and treats us all like criminals cannot substitute for true law enforcement…responding to specific articulable facts that amount to reasonable suspicion that a crime is being committed." From previous experience, the lawyers have learned to go to court as soon as a so-called free speech zone is proposed.
"In the past, federal judges have expressed concern over the legality of restrictive protest zones but claimed it was too late for them to do anything about it. We have to seek relief sooner," says NLG member Thomas Cincotta of the law firm Kurtz & Peckham. "But how do you ask a court to enjoin a protest zone that hasn't even been put in place? We must make the case that these restrictive plans are in place now, despite the government's refusal to disclose them to us."
In both cities, the permitting process is being manipulated by authorities. The Twin Cities NLG is prepared for any quick rules change; for instance St. Paul may refuse to even consider demonstration permits until six months before the event, and civil liberties lawyers are prepared to sue. Denver embarked on a review of its permitting policy, and then suspended an application deadline for a permit, saying it had not yet finished its review.
Denver is following New York in its refusal to issue summons to protestors who break the law committing civil disobedience, rather than arrest them. The City Attorney recently enacted a policy of no "cite and release" for protestors, which allows them to be detained and indeed punishes them for exercising their free speech rights. The city already used it at an October Columbus Day protest, where police arrested 83 people and held them overnight although they posted cash bond. And to transmit the idea that these demonstrators were dangerous, police, like those in Miami, New York, and indeed at a November anti-war protest in Seattle, appeared armed in full riot gear. In Seattle, the police brought tanks.
Stonewalling by officialdom has already begun, despite regular meetings. In Denver, says Cincotta, "My frustration… stems from the lack of true dialog concerning security preparations for the DNC. Information-sharing has been a one-way street." As we've seen in New York at the RNC, an incommunicative police force violates laws in their mistreatment of demonstrators, secure that any redress will come long after the event. For citizen's free expression, the damage will be done.
None of these threats to free speech and the First Amendment could take root without the President of the United States setting the standard. The decision by George W. Bush to authorize warrantless spying on Americans stands as the supreme example of government disregard for the First and Fourth Amendments.
Heidi Boghosian is executive director of the National Lawyers Guild and author of the recent report Punishing Protest: Government Tactics That Suppress Free Speech. She cohosts a weekly radio program, "Law and Disorder," broadcast on WBAI-FM in New York. Abby Scher is editor of The Public Eye and a sociologist who writes frequently about civil liberties.
1 Abby Scher, "The Crackdown on Dissent," The Nation (Feb. 5, 2001). http://www.thenation.com/doc/ 20010205/scher
2 Eric Lichtblau, "FBI Goes Knocking for Political Troublemakers," New York Times, August 16, 2004.
3 Associated Press, NYPD to Destory GOP Protest Fingerprints," October 21, 2004. http://www.commondreams.org/
4 Carol D. Leonnig, "PCJ Reveals FBI Intel Gatherine in Protestor Arrests," Washington Post, April 3, 2007.
5 Copies of documents obtained under FOIA can be found in "No Real Threat: The Pentagon's Secret Database on Peaceful Protest," ACLU (January 2007); Mark Schlesinger, "The State of Surveillance: Government Monitoring of Political Activity in Northern and Central California," ACLU of Northern California (July 2006). MSNBC broke the database story in 2005: Lisa Myers, et.al., "Is the Pentagon Spying on Americans," MSNBC, December 14, 2005. http://www.msnbc.msn.com/id/ 10454316/
6 "Some Turn to Videotape to Challenge Police," abc
print? id=833389. Links to this and other stories of those exonerated can be found on the I-Witness Video site, http://iwitnessvideo.info/news/
7 Radio interview with Eileen Clancy, "NY Law Enforcement Caught Doctoring Video of RNC Arrests," Democracy Now, April 14, 2005, http://www.democracynow.org/
8 Jim Dwyer, "Police Infiltrate Protests, Videotapes Show,"
New York Times, December 22, 2005. http://
9 See Schlesinger.
10 Schlesinger, p. 12.
11 Jim Dwyer, "City Spied Broadly Before GOP Convention," New York Times, March 25, 2007.
12 Ernie Naspretto and Alison Gendar, "Dem Big to NYPD: Butt Out," NY Daily News, May 13, 2007.
13 "Federal Court Orders NYPD To Release Intelligence Documents About RNC Surveillance Operation," New York Civil Liberties Union, August 6, 2007. http://nyclu.org/node/1275
14 Chip Berlet and Abby Scher, "Political Profiling: Police Spy on Peaceful Activists," Amnesty International magazine, Spring 2003. http://www.amnestyusa. org/amnestynow/profiling.html
15 "History Repeated: The Dangers of Domestic Spying by Federal Law Enforcement," American Civil Liberties Union, May 29, 2007, p. 16.
16 David E. Kaplan, Monica M. Ekman, Angie C. Marek, "Spies Among Us: Despite a troubled history, police across the nation are keeping tabs on ordinary Americans," US News & World Report, (May 8, 2006), v. 140, no. 17: 40.
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