Sign carrying has always been a part of peaceful protest and free speech in our country, and dissenting viewpoints have always been welcome - if not debated - in our democracy. Without protest or dissent, there might never be change. As The Impolitic says:
The way I see it, the purpose of civil dissent is to peacefully disrupt the status quo.
This law could reach beyond official political events too, as Hy Dudgeon at Michigan Liberal points out.
Remember Duncan DeBruin, the man who was ejected from Ford Field for holding up a "Fire Millen" sign at a Lions game?
DeBruin better not think of a repeat performance at Super Bowl XL, especially if President Bush decides to attend the game--like his father did the last time they played the Super Bowl in Michigan. He might wind up doing time in federal prison.
Dudgeon also points out that "there have been about 20 NSSEs since 1998. They included the 2000 and 2004 national party conventions, presidential inaugurations, the 2002 Winter Olympics, and Super Bowl XXXVII in New Orleans." And don’t forget about the three teachers in Medford, Oregon, who were thrown out of a Bush rally for wearing T-shirts reading "Protect Our Civil Liberties" because a Bush campaign worker deemed the shirts "obscene."
Sen. Feingold has already spoken out against this reauthorization act. He said he will do everything he can to stop it, including a filibuster, because the act does not include adequate safeguards to protect our constitutional freedoms. We all need to step up and help Feingold. As Hy Dudgeon points out:
Floor debate on the Patriot Act starts today. Please contact our senators and ask them to join Senator Feingold's effort to stop this legislation. Congress can't afford to hand any more power to the executive branch. Especially one headed by a president as arrogant as George W. Bush.
6 comments:
I incorporate my comments at The Impolitic by reference here.
To the concerns raised by Hy Dudgeon, I respond with the following:
First, as a technical matter, he only references the summary (which has no legal force) instead of the text of the actual law. Normally, I would not think much of this, but I would expect more from someone who is (as I recall) a licensed attorney trained in such matters.
Second, though his hypothetical comes closer to that which I requested, it still does not address the perimeter breach issue under the statute. The fan at Ford Field was a valid ticketholder at that game -- thus, no apparent breach of regulations concerning entry.
Third, the entry regulations at Ford Field (good enough for our current inquiry) prohibit all signs and banners. The regulation is content- and viewpoint-neutral; even if this were a government-sponsored event, there is no almost certainly no First Amendment violation. Also, all attendees of the game are searched upon entry: we can presume that he did not have a sign at entry (which is what he claimed - see also link below) and was not in violation of the entry regulations.
Fourth, even under the most favorable circumstances, this fan's disturbance was not merely one of raising a sign, but one of running from section to section through the seats after grabbing the sign, raising a reasonably immediate safety concern. Whether that running through the seats is "peaceful dissent" is a debateable issue (I'm inclined to think not, especially given the tight quarters in stadium seating, but I am receptive to contrary arguments), I suppose, but it is certainly much more than the (more favorable to opponents of Section 602) mere raising of a sign that is the subject of this dispute over Section 602. Nevertheless, there is no evidence that this fan entered Ford Field a couple of hours before the incident with the requisite intent to create a disturbance -- something that would need to be proven under Section 602.
Fifth, the reference to the events in Oregon strike me as a blurring of the issue in multiple ways, but most importantly that those suits, if they ever were viable, were brought under state - not federal - law. But, I don't have more complete information to do a fuller analysis on those cases.
So, my question remains: What heretofore protected speech is materially affected under Section 602? Hy Dudgeon's example is the best I have seen thus far, but it still doesn't convince me.
Exile, darn, I think I got that little bug you had when I visited your blog over the weekend! I am feeling very under the weather.
Anyway, I don't know what happened to the comment I left here last night, but let me try again. I read the material you sent me and all the comments at The Impolitic and your comment here. However, I still tend to side with Libby and Hy. I think Section 602 is more of an effort to control the message than protect from terrorism.
I agree that unlawful entry and weapons should be illegal, but how does a sign fit in this scenario? If you're sitting at the Super Bowl legally, after getting searched upon entry for weapons, and you see Bush is there in a suite and suddenly decide to write "Bush Is a Moron" across your shirt with a magic marker, how can that be construed as a terroristic act?
I find it especially troubling that this section can affect public venues like the Super Bowl or public areas like streets outside of convention halls. The political parties use the airwaves to generate advertising that smears and slimes people, but normal citizens can't carry a homemade sign? Once again, the people with the power get what they want and the little guy gets screwed.
Sorry, like Libby, I grew up through the Vietnam era, so my perspective is different from yours, but I do think our democracy will be hurt if this is allowed to happen. It's a slippery slope. The day will come when you can't even drive past the White House with a derogatory bumper sticker on your car.
Anyway, I'm willing to let you try to convince me. You're the attorney and I'm not, so I'm sure our perspectives differ on the matter because of that - and our ages. ;-)
Peace!
I do hope you feel better today. I imagine the weather you have had lately can't help at all.
You raise some good points and questions, and I'll address them as well as I possibly can.
I agree that unlawful entry and weapons should be illegal, but how does a sign fit in this scenario? If you're sitting at the Super Bowl legally, after getting searched upon entry for weapons, and you see Bush is there in a suite and suddenly decide to write "Bush Is a Moron" across your shirt with a magic marker, how can that be construed as a terroristic act?
Quite simply, it can't, and by my reading of the statute this would not be an action that raises criminal liability, especially since you legally entered the stadium.
And this goes to my underlying point: I don't see how the simple act of holding a sign would become a criminal act under this law. That is, the sign was only entered into the scenario because Ben Masel said so. Mr. Masel, from my reading yesterday, has been the primary proponent of this (I think, unfoundedly alarmist) theory since I have found his name and the text that Libby quoted on every left-leaning blog over the last couple of days. That's apparently where other people (like Hy Dudgeon) are picking it up from. (In the interest of full disclosure, I did eventually find a single letter from the ACLU to Senator Spector expressing concerns over Section 602. While they also glossed over the unauthorized entry requirement, not even they presented the nightmare scenario that Mr. Masel did.)
I find it especially troubling that this section can affect public venues like the Super Bowl or public areas like streets outside of convention halls.
Two quick points: First, for First Amendment purposes, a stadium is not considered a public forum in the same way that a city street is. No one has the same right to protest inside the Super Bowl that they would to protest outside the Supreme Court. Second, it seems to me that the only sidewalks implicated in Section 602 are those already inside of a secured perimeter. If you can lawfully get within the perimeter, it seems that you can't be prosecuted under Section 602.
Now, I would agree that this would be troublesome if, say, the Secret Service painted a line outside of the stadium, declared that line to be the perimeter, and a protest spilled over the line and the protesters were arrested as a result. But, I think that assumption would require an additional assumption that the Secret Service had decided to toy with its security functions. I would not look for them to start doing that anytime soon; their jobs are stressful enough as it is.
I'm not saying that the PATRIOT Act, or even Section 602, is beyond reasonable debate. There may in fact be room for abuses under Section 602; I don't see them, but they may exist. But the claims I saw about Section 602 struck me as being, at best, a profound stretch.
I hadn't thought about this in some time, but it occurs to me that my mother always taught me when I was a kid to go home after church and double-check the pastor's sermon against my Bible, so as to be on guard against false prophets. It now occurs to me that this advice has spilled over into other areas of my life. If I ever seem exceptionally demanding of evidence (as I suspect I often do), now you know why.
I hope you're back on your feet soon.
Exile, some tea and a couple Tylenol have been soothing.
I wanted to mention this point you made: That is, the sign was only entered into the scenario because Ben Masel said so. Mr. Masel, from my reading yesterday, has been the primary proponent of this.
What about Feingold? He's threatening to filibuster. Are his objections based on other points? I couldn't find anything definite about his objections.
Also, you pointed out that there would be situations when a person's actions wouldn't be deemed terroristic. So, basically, a judge would make the final determination, right? And any citizens charged with a crime under this Act had better hope he/she gets a timely trial - more timely than Padilla, etc. This one act of free speech could result in years in jail and hefty legal fees.
Geez, the whole thing is vague. Maybe that's what the government wants to accomplish. Make it vague enough to scare people into submission.
Do you like the Act the way its written? Do you support it 100%?
Glad to see you are feeling better.
What about Feingold? He's threatening to filibuster. Are his objections based on other points? I couldn't find anything definite about his objections.
Feingold's objections to the Act have been more general (unsurprising since he was the only Senator to oppose the PATRIOT Act last time around), but when he has talked about specifics, it's been about the "sexier" provisions (sneak-and-peek warrants, wiretapping, etc.). I've been looking, but I have not found a single instance where he even mentions Section 602 specifically.
Also, you pointed out that there would be situations when a person's actions wouldn't be deemed terroristic. So, basically, a judge would make the final determination, right?
Up until the point of trial, yes. (If it ever gets that far -- see below.)
And any citizens charged with a crime under this Act had better hope he/she gets a timely trial - more timely than Padilla, etc. This one act of free speech could result in years in jail and hefty legal fees.
I really don't think so. As far as the jail time goes, I have to believe (from my admittedly limited study of the federal bail system) that a defendant here typically would not sit in jail for more than it would take to get before a judge (no more than 48 hours, typically, but usually less). Judges have about a dozen or so factors to weigh in setting bail, but assuming no history of violent crime or discernable flight risk (fair assumptions to make of a non-violent protester defendant, I think), then that person would be freed on a nominal bail (just enough to ensure appearance at court dates) -- no more than a couple hundred dollars, if not on her own recognizance (which I think is equally likely). Further, even if out of jail, concerns about Padilla-like waits are (thankfully) not an issue here. Remember: the whole hold-up with Padilla thus far has been whether a citizen who is an alleged enemy combatant who attempts to enter the country has recourse in the civilian courts. I don't think anyone would seriously debate the right of a defendant under Section 602 to trial in the civilian courts.
Of course, legal fees are always relative, but it seems to me that the more malicious the prosecution here, the more trumped-up the charges, then the easier (and less expensive) to defeat. If a true abuse of the statute results, then it strikes me as even less likely of even making it to trial without the charges getting dismissed.
(And, it would be the kind of case that attorneys clamor for when they need a pro bono case. If all it really slips through and comes down to is an act of free speech, then I'm sure the ACLU would offer its services ASAP; such a case would support a high-profile -- and no doubt spur an increase in giving to the organization. But, again, I doubt it would ever get that far.)
Geez, the whole thing is vague. Maybe that's what the government wants to accomplish. Make it vague enough to scare people into submission.
And thank God for vagueness: without it I'd be out of a job. This is true of almost every statute on the federal books. Seriously, though, if a law is too vague it can be problematic. That said, as you yourself noted in our discussion on torture, too much specificity in a statute is also problematic. I don't think this law is so vague as to scare anyone into submission; people will continue to carry on as they would have before. Now, if you want to talk about "scaring into submission," we could discuss the tax code. I should warn you, though, that I wouldn't know the first thing about it.
Do you like the Act the way its written? Do you support it 100%?
I don't think I can definitively give you an honest answer to this question. In order to do so, I would have to give the time to every section that I have to Section 602.
I'll try to answer your question like this, though. First, I don't think I have ever supported a law 100%; it is necessarily the creation of some level of compromise (and I probably could never be a legislator as a result -- I just don't have the patience for it). Second, I think that pretty much everyone who has had any kind of soapbox on this law in particular has trumped up his case to the point of straining credibility. Proponents and opponents alike make claims about the PATRIOT Act that fail to pass the giggle test, but say little else. I get that this is the state of politics in America today, but it seems enhanced when it comes to this Act.
In any event, I have made arguments on both sides of the Act in the past. They tend to lean in favor of the Act, though when I can buy into a constitutional objection that someone raises, I'm not afraid to admit it.
Which sort of comes back to why I latched onto these claims about Section 602. When I read them, I could not believe it, and I was deeply concerned. Once I pieced it together for myself, I reached an opposite conclusion. I certainly have not taken this little bit of research and debate lightly; as I trust you realize, I jumped into the fray not from some deep desire to defend the Administration, but because I was deeply concerned by the accusations and what they meant about my rights.
I've rambled quite enough. I really hope that addresses adequately the points you raised.
Also, you pointed out that there would be situations when a person's actions wouldn't be deemed terroristic. So, basically, a judge would make the final determination, right?
Up until the point of trial, yes. (If it ever gets that far -- see below.)
Actually, let me clarify this a little. The judge would have the opportunity to decide (as any minimally competent defense attorney would file a motion or motions to dismiss) if the state can present enough evidence to make its case. I take the position that it would be much more difficult than Mr. Masel suggests for the government to do so under this law. I have to believe it comes down to the "illegal" entry issue in the case of a peaceful protester -- the prosecutor would likely have a difficult time showing that the entry into the secured area would be in violation of relevant regulations in such a case. As for costs, such motions are fairly routine and not particularly time-consuming. I've even written similar type of motion in the past to end a criminal case. (And won!)
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