The Destruction of Dissent
First Amendment Rights in the Post-September
by Heidi Boghosian
Resist newsletter, May 2002
Rallies, marches, sit-ins, pickets, vigils, leafleting, and
street theater. For decades, labor unions, educational, arts and
immigrants' rights groups have relied on these forms of lawful
expression to share their viewpoints with the public at large.
Yet in the span of six months the climate in which cause-oriented
organizations can carry out this public part of their mission
has been significantly altered. After the events of September
11, 2001, the federal government and many states enacted new legislation
that will have an overarching impact on the nonprofit sector.
Local police departments, often in cooperation with the FBI or
other branches of federal government, are using a heavier hand
to deal with organizations wanting to take dissent to the streets.
Nonprofit groups are experiencing, firsthand, several crackdowns
on their First Amendment rights to lawful expressive activity.
Recent trends include pre-emptive strikes to curb First Amendment
activity such as the denial of demonstration permits based on
content, harsher treatment of protestors (including the use of
pepper spray and potentially lethal force), enhanced sentences
for low-level offenses, and interrogation based on political viewpoint.
Crackdown on Demonstration Permits
Granting permits for street parades or large demonstrations
based on content is constitutionally impermissible, but local
police departments appear to be more conscious of content for
such gatherings. Traditionally, local police departments follow
local regulations when issuing permits. The application process
typically tries to identify characteristics that may require increased
police security measures-such as the gathering's expected size.
It is usually a clear and simple process.
In several cities since September 11 police have said that
they are no longer issuing permits at all or are doing so on a
case-by-case basis. Many cities are cracking down on organizers
of demonstrations who do not obtain permits when previously they
may have simply allowed demonstrations to occur without permits.
Months after September 11, for example, the city of Cambridge,
Massachusetts, raised obstacles for Harvard Living Wage campaign
organizers to obtain a demonstration permit. The group contacted
the city manager and was told that he was not issuing any permits
until further notice because a September 20 demonstration had,
as he described it, "gotten out of hand." Inquiry calls
from others revealed that permits would be issued on a case-by-case
basis. When representatives from the ACLU, Cambridge Women's Commission,
National Lawyers Guild and Abortion Access Project later met with
the city manager, police commissioner and other city officials
to clarify the application process, they were told that the city
was using a "special events permit" procedure that would
require $500 surety bonds for demonstrations.
In New York, members of the National Lawyers Guild observed
firsthand that many small, spontaneous peace actions were treated
more harshly than before September 11. Representatives of the
New York City Police Department denied a permit for a group of
Afghani women. Police subsequently told the women that they would
not deploy police officers to the scene of the protest and that
the demonstration participants would therefore be in danger from
opposing political groups. Such actions may intimidate groups
that have not had previous experience negotiating with the police.
In another instance of changed police attitudes toward protestors,
18 people were arrested at a peace rally in Hartford, Connecticut.
Several of the "Hartford 18" were charged with conspiracy
to incite a riot, even though protestors claim that they were
targeted and were merely mediating a discussion after initial
arrests were made. At the peace rally the police used pepper spray
on the crowd. The media reported that Hartford residents who had
attended a larger rally in April 2001, that also did not have
a permit, noted that the police's reactions were noticeably different
in the wake of September 11.
Ramped Up Charges
Anti-globalization protesters have documented cases of enhanced
penalties and increased police scrutiny for the past two years.
For example, an unprecedented $1 million bail was set for one
demonstrator at the Philadelphia Democratic Convention whom police
had identified as a "leader." Now, post-September 11,
there have been even more instances of charges for low-level offenses
being ramped up. One of the Hartford 18, peace activist Adam Hurter,
was charged with inciting a riot and faces a 10-year sentence
if the Hartford prosecutor has his way. The police report called
him a "ringleader" who was trying to recruit "radicals"
to join him in his "violent plot" to attack an officer.
Hurter and witnesses say that he sat in the middle of a circle
of demonstrators on a sidewalk and led discussion about what to
do after the police started arresting people.
In what was clearly an enhanced penalty based on the content
of the offense, four protestors in San Francisco were arrested
on felony charges for "wheat-pasting" dumpsters with
posters of the Twin Towers with a plane flying into them, captioned
"The Evil Empire." Two of the offenders were each charged
with felonies and held on $5,000 bail. In the rare instances in
which anti-fliering ordinances are enforced, wheat-pasters are
typically charged with a violation or misdemeanor, receive a citation
and are released-since the property damage (usually a lamppost
or wall) is not large enough for a felony.
Arrestees at the February 2002 World Economic Forum anti-globalization
demonstrations in New York were extensively questioned about their
politics while in custody. Women have been singled out for particularly
harsh treatment, and many were held on a bus for up to nine hours
or more, apparently without access to water, bathrooms, food,
attorneys or medical treatment. "Such detention is strictly
punitive and illustrates the state's attitude toward dissent in
the post 9-1 1 climate," said Marina Sitrin, a member of
the New York-based People's Law Collective. "Questioning
about political views is unconstitutional and shows that people
are being singled out for their viewpoints."
Overzealous Law Enforcement
Local police have worked in tandem with the federal government
prior to September 11 but tended to keep their cooperation quiet.
Now, local officials are openly asking protestors to share personal
information with federal officials-possibly to intimidate them.
Protesters at the recent World Economic Forum (WEF) demonstrations
in New York were put through the system for low-level violations
and misdemeanors. "While in detention, police tried to forcibly
remove them and told them it was for the purpose of being interrogated
by the FBI," said Sitrin. "Since 9-1 1, more activists
have been stopped on the street and visited in their homes by
FBI agents wanting to question them about their political views
and affiliations," she continued.
Political activists who criticize the government or maintain
ties with international political movements are targets for being
charged with the new crime of domestic terrorism created by the
USA PATRIOT Act-especially anti-globalization movements that had
already been the target of enormous police zealousness since 1999.
The Act defines terrorism so broadly that anyone who may have
at some time participated in civil disobedience, or even a labor
picket, may be targeted.
In addition to the federal anti-terrorism legislation, local
laws similar to the USA PATRIOT Act are being passed. A pending
bio-terrorism law in New York State would criminalize the throwing
of certain liquids. Mandatory life would be the lowest penalty
for acts such as animal rights activists throwing blood or an
inmate throwing urine at guards. In early February Utah's Senate
Judiciary Committee unanimously recommended a bill that would
create the crime of "commercial terrorism," which would
make it a felony to enter or remain unlawfully on the premises
or in a building of any business with the intent to interfere
with the employees, customers, personnel or operations of a business.
This would outlaw many protests such as the ACT-UP or anti-apartheid
protests of the 1 980s and many organizational protests around
sweatshop labor in the 1990s.
First Amendment Under Attack
Given the police departments' crackdown on groups that they
perceive to be questioning US policy, some of the groups that
can expect immediate increase in police attacks at rallies are
anti-globalization groups, groups consisting of foreign-born students,
groups protesting US Middle East policy, and groups questioning
corporate-sponsored US foreign policy. Single-issue groups such
as those protesting the bombing of Vieques may also find the newly
expanded governmental powers turned against them. In general,
any group of individuals engaged in protest that could be intended
to influence the policy of government, such as labor unions, peace
activists, educational organizations, arts organizations, or political
parties, may find themselves unexpectedly facing severe criminal
The recent spate of anti-terrorism laws and the resulting
policies-both official and unofficial-greatly exacerbate the national
trend of chilling First Amendment expression. The right to form
alliances with other groups is essential to coalition building
and the right to organize. These new practices add to the continuing
erosion of the fundamental right to free expression and free association
that is a cornerstone of our democracy.
Heidi Boghosian is executive director of the National Lawyers
Guild (www.nlg.org). This article is reprinted with permission
from Third Sector New England, Boston, MA (Volume 8, Issue 4).
The Nonprofit Quarterly features innovative thinking and management
practices in the nonprofit sector For information please call
Civil Liberties watch