Don’t Bully My Speech

By Witold Walczak, Legal Director, ACLU of Pennsylvania

What kind of peace and non-violence rally could provoke inflammatory rhetoric like, “Yes we should block them from crossing the bridge, and if we legally can’t then they should force them to walk between us Armed with rifles while we taunt them.”   Or, “I really think people should bring pitch forks and torches this time.”  Another message warned people to “stay off the bridge if you are carrying!—there is video surveillance and the state police have jurisdiction on the bridge.”  Yikes. 

The comments were posted on the Internet by pro-gun-group members plotting to stop, or at least severely disrupt, a May 11 Rally Against Gun Violence, sponsored by the Coalition for Peace Action (CFPA).    The Coalition’s website describes it as a “regional organization dedicated to abolition of nuclear weapons, a peace economy, and a halt to weapons trafficking at home and abroad.”   Their more recent activism has focused on stopping gun violence.  Their leader, for more than 30 years, is the Reverend Robert Moore, who has an impressive pedigree of peace and social justice activism.

The pre-Mother's Day event protesting gun violence, months in the planning, includes a program at Trenton’s First Baptist Church, a march across the Delaware River over the “Trenton Makes Bridge,” and concludes with a rally at Williamson Park in Morrisville, Pennsylvania.  Former Pennsylvania Governor Ed  Rendell is a featured speaker.  This is an anti-violence event.

The intimidation by pro-gun groups opposed to Rev. Moore and his folks has, unfortunately, threatened the event.  It caused the Delaware River Joint Toll Bridge Commission (Commission) to delay issuance of a permit for the CFPA marchers to cross the bridge into Pennsylvania.  On Tuesday, the ACLU of Pennsylvania sent a letter to the Commission indicating that a lawsuit would be forthcoming unless the requested permit was issued by the following day. 

Ensuing communications made clear that the Commission’s resistance to issuing the permit had nothing to do with the ACLU’s clients, the CFPA, but rather by the threats from the counter protesters.   In an email, the Commission’s director wrote that, “to conduct a rally of this type in the very place that children are expected to play baseball, and to bring members of your client's organization that are also children (and the elderly); although it may suit your client's messaging needs, is a mistake.  Please consider changing the date, or the venue, (or minimally do not bring children or the elderly) to decrease the probability of something going wrong.”  Obviously, the volatility was not introduced into this event by CFPA.  

In situations like these, government cannot yield to such intimidation or threats of violence to deny peaceful, law-abiding folks their right to free speech.  This argument to justify censorship is known as a “heckler’s veto,” and works like this: even though we believe you are peaceful and law-abiding, we cannot let you speak, i.e., exercise your First Amendment rights, because people who don’t like your message have threatened public safety if we let you proceed.  It’s a form of blackmail; bullies and lawbreakers can intimidate government into censoring law-abiding, peaceful activists by threatening civil disorder.  Southern sheriffs and governors often invoked this argument to deny permits to, or arrest, peaceful civil rights demonstrators.  Another bridge, the Edmund Pettis Bridge in Selma, Alabama, was the scene of a similar confrontation when threatened violence by local racists prodded the sheriff to blockade the bridge (though the sheriff there didn't need much prodding).

The U.S. Supreme Court has repeatedly rejected the heckler’s veto justification for censorship, ruling in 1950s and ‘60s civil rights cases along the lines that, “Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence.”  This settled principle of law remains vital and necessary today, as witnessed by this week’s events.

Fortunately, the Commission acceded to the ACLU’s request on Tuesday evening and approved CFPA’s permit, thereby allowing the march across the bridge.  Fear that the counter-protesters will disrupt public safety during the CFPA march was, and continues to be, an ongoing concern.  Both the New Jersey and Pennsylvania State Police are on notice and will be monitoring the scene. 

The First Amendment gives everyone in this great land a right to express their views in public.  The First Amendment doesn't, however, allow anyone to threaten violence or disorder when they don’t like what others say.  The antidote for speech we don’t like is not censorship or intimidation, but to respond with a counter argument.

From a civil liberties perspective, the First Amendment doesn't allow government to be bullied into vetoing the speech of law-abiding folks.  Just like the civil rights marchers wanting to cross the Edmund Pettis Bridge in Selma in 1965, gun-safety advocates have the same right to cross the Trenton Makes Bridge unimpeded by opponents’ intimidation.  Freedom of speech cannot survive if government yields to threats and intimidation by shutting down peaceful, law-abiding demonstrators.  

Freedom Index by State

I am not endorsing this, but it is too interesting not to share. I also have not had the free time this morning to thoroughly review it and summarize it for you. I know I'm shirking my duty as a blogger here, but civil liberties take work, people!

Anyway, the Mercatus Center at Georgia State University has compiled what they call "Freedom in the Fifty States," an index of personal and economic freedom (check the study for their definitions and standards of measure for each) in each of the 50 States. It's an interesting read.

According to this study, folks in Alaska are running wild as wolves, while New Yorkers are living under lockdown in a statewide gulag. Or something like that. Pennsylvania falls in the "second quintile," with higher than average economic freedom and slightly lower than average personal freedom.


The full study is available here. Thanks to Boing Boing for bringing this to my attention.

Update: Commenter Anonymous (I've looked around the internet and he's quite prolific) supplied a link to a similar page, except this one allows the viewer to customize "freedom" according to his or her own definition. Thanks for the link, A. It's the kind of thing that can entertain some of us ACLU-types for hours on end. And that is in no way depressing.

Chris in Philly

Amy Goodman speaks about her arrest

This video is a few weeks old, but I just stumbled across it today. Amy Goodman of Democracy Now, who was arrested along with several other journalists at the RNC in St. Paul, talks about her experience and the state of free speech and free press in American with PBS's NOW.

I was amazed by the response a few weeks ago from some SF readers that the behavior of the St. Paul police was perfectly acceptable.

Last Friday the charges against the arrested journalists were dropped by the St. Paul City Attorney.

Andy in Harrisburg

You'd make a great cop

"Got a lot of questions for me
You got a lot of questions for me
Got your finger pointing at me
Distrusted, I look for wires when I'm talking to you
You'd make a great cop."
--Fugazi

Well, it looks like the ACLU of Minnesota is about to get some business.

For whatever reason, political conventions lead the po-lice in the host city to act like our democracy has been replaced by a totalitarian system.

In 2000, it was Philadelphia. Pennsylvania State Police infiltrated an activist group, and an activist friend of mine was beaten so badly by the Philly PD during a protest that he ended up with a permanent hip condition.

In 2004, it was New York and Boston. We chronicled the abuse of free speech rights at those conventions in the Freedom Files episode Dissent.

And now it's Denver and especially St. Paul. Last week in Denver the first checkpoints around the arena where the Democrat party held its convention were two miles away from the arena. Even worse, the Colorado National Guard was on call to deal with protestors. And we all know what can happen when the National Guard deals with protestors.

Perhaps the most egregious abuse of power by the cops has occurred in St. Paul over the last few days. In general, the police have been abusing people for exercising their free speech rights.

Specifically, America is not a country where we arrest journalists. And yet Democracy Now! host Amy Goodman and producers Sharif Abdel Kouddous and Nicole Salazar, AP photographer Matt Rourke, who is based out of Philadelphia, and several other journalists were arrested for simply covering the protests and the police reaction to them. It's incredible that I even have to say this, but they were carrying out the right to freedom of the press protected by the First Amendment of the U.S. Constitution. One of Rourke's supervisors was none too pleased:

David Ake, an AP assistant chief of bureau in Washington, said he was concerned by the arrest of Rourke, a Philadelphia-based photographer.

"Covering news is a constitutionally protected activity, and covering a riot is part of that coverage," Ake said. "Photographers should not be detained for covering breaking news."

Here's the video of police chasing down Salazar. You can hear her screaming, "Press! Press!"



And here's the video of the arrest of Goodman, who was inquiring about what happened to her producers.



So much for "to serve and protect". The St. Paul police certainly are not serving or protecting democracy. They're protecting the thugs who have taken over our government.

National ACLU has released a statement, indicating that ACLU attorneys are on the scene. And here's DN!'s statement on the arrest of its employees.

Andy in Harrisburg

Civil liberties summer reading list

SF is not going to become a place where authors can pitch us to read and review their books, so any writers out there, don't bother writing us that email. But the two books I've most recently completed have a civil liberties connection, so this seems like as good a place as any to share.

I most recently finished Freedom for the Thought that We Hate: A Biography of the First Amendment by Anthony Lewis. This was a great book for learning more about the history of free speech and free press in the United States. (Despite the title, the book focuses on speech and press and not other aspects of the 1st A.) This book is a reminder that we really are in the high time of free speech in America.

The book reads a bit like a history text, but it is a relatively easy read. Lewis has a topic for each chapter and then explains key cases on that topic.

Before that, I finished off The Devil in Dover: An Insider's Story of Dogma v. Darwin in Small-Town America by regular SF contributor Lauri Lebo, aka "Lauri in York". This was a great read. I killed it off in five days, which is highly unusual for me. I had multiple sittings where I read 50-75 pages at a time, again highly unusual.

The real draw of Lauri's book is the narrative she spins. The book reads like a novel, and it's incredible that it's non-fiction! As a native of this area, Lauri gives great context of life in south central PA, which adds flavor to the broader story of America's battle over evolution.

For fans of the first amendment and civil liberties, check these out!

Andy in Harrisburg

New journalism

I've often made the argument that while blogs can be invaluable news aggregates as well as great sources for putting a story in its much-needed context, newspapers in this country still remain the primary newsgatherers.

That's why I've argued that if newspapers continue their downward spiral, what's left of the media will become nothing but a loud echo chamber. Everyone commenting on the opinions of others. But nobody doing any real investigative reporting.

Certainly, I'm not the first person to come up with this idea. As Thomas Jefferson said, "Information is the currency of democracy." But I have always embraced the notion that without the vital watchdog role of the traditional Fourth Estate, democracy will fail.

I'm not yet ready to say I was wr...that I'm wron... Let's just say that I've been tweaking my position this week.

As you know, an April 20 New York Times story revealed that the military analysts we've seen so much of on cable and network news in the past five years are actually shills for the Pentagon.

Without a doubt, reporter David Barstow and the Times deserve an incredible amount of praise for exposing these unethical relationships. The newspaper fought for two years and endured a costly court battle to get access to the documents that reveal the coziness between these supposedly neutral analysts and the government.

Now that the public documents have finally been released to the public, who's been doing the followup investigations? Who's been the real newsgatherers in the process?

Well, it sure ain't the networks who have all been remarkably quiet about the revelations about their go-to commentators. Probably because they were too shocked - Shocked, I tell you! - to respond.

No, the folks who have been keeping this story alive, in addition to The Nation magazine - which has vowed "to keep the story alive until it gets the attention it deserves" - are the bloggers and their readers. Citizen journalists.

TPM has been conducting a terribly interesting experiment. One of its writers has been asking readers to share the burden of combing through the Pentagon documents and documenting some of the worst excesses.

This is one of the little tidbits they found:

From:redacted
To:redacted

hi. jed babbin, one of our military analysts, is hosting the michael medved nationally syndicated radio show this afternoon. he would like to see if general casey would be available for a phone interview any time between 3 and 6 pm.
...
please feel free to contact jed directly (contact info below) if the general can/would be available for the interview. this would be a softball interview and the show is 8th or 9th in the nation.

From: Allison Barber
To: redacted
Hi. Thanks for sending this. Just fyi, probably wouldn't put "softball" interview in writing. If that got out it would compromise jed and general casey.

And how about this scary item from Firedoglake:

An ongoing exploration of the documents related to the Pentagon's "message force multipliers" program has unearthed a clip of former Defense Secretary Donald Rumsfeld suggesting that America, having voted the Democrats back into Congressional power, could benefit from suffering another terrorist attack, and doing so in the presence of the very same military analysts who went on to provide commentary and analysis of the Iraq War.

It remains true that it takes the deep pockets and larger resources of newspapers like the New York Times to get access to information that the government would rather keep hidden. But when it comes to sheer doggedness at digging for information, blogs and their loyal readers are proving that they also play an important role in the democratic process.

Lauri in York

Editor's note: "Lauri in York" is the author of a new book, The Devil in Dover: An Insider's Story of Dogma v. Darwin in Small-Town America. Click here for last week's review in The Patriot News.