Thou dost protest too much.

The law, lawyers, and the court.
Sept. 21 2004 5:11 PM

Thou Dost Protest Too Much

An old law turns protesters into threats against the president.

Depending on where you stand, Brett Bursey is either the world's greatest protester or a giant, unmitigated pain. He's been a thorn in the side of Columbia, S.C., authorities since 1969—when he got two years in prison for spray-painting "HELL NO, WE WON'T GO" on the wall of his draft board office. Except for a stretch in the early 1970s spent hiding in the mountains of northern Georgia, Bursey's been a fixture of Lexington County, protesting everything protestable since Nixon and Vietnam.

So, you'd be excused for thinking that Bursey's recent federal conviction stemming from his protest of a 2002 visit by President Bush—a conviction upheld last Wednesday—is his own, special problem. But it comes at a time when hundreds of protesters are being rounded up at presidential visits all over the country, making Bursey the 56-year-old canary in a demonstrators' coal mine.

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On Friday, the antiwar-T-shirt-clad mother of a slain soldier was pulled out of a Laura Bush speech in New Jersey and threatened with arrest. A West Virginia couple was detained by the Secret Service for wearing anti-Bush T-shirts at a July 4 rally—they filed a lawsuit last week—and AIDS activists were removed and kept away from reporters at a Sept. 9 presidential event in Pennsylvania. Most notably, some 1,800 protesters, monitors, and passersby were jailed in indiscriminate raids during the Republican Convention in New York, while several hecklers were dragged off the Madison Square Garden convention floor. All were arrested or threatened with arrest, and hundreds expect to stand trial. And that's why Bursey's is not the story of an isolated troublemaker, but a harbinger of what protesters might expect in the future.

The strange catalyst here is a new weapon in the federal antiprotest arsenal or—more precisely—a previously unused one. The government nailed Bursey with an arcane 1970 Secret Service provision—Title 18, Section 1752(a)(1)(ii) of the U.S. Code—which makes it a federal crime to "knowingly and willfully" enter an area restricted by the Secret Service during a presidential visit. The law was originally drafted by legislators scarred by the assassinations of the 1960s, in the hopes of preventing the next attempt on the life of a president. Turns out the law can be used to prevent criticism as well.

In Bursey's case, the government contended that on Oct. 24, 2002, the protected zone encompassed an intersection near the Columbia Metropolitan Airport where Brett Bursey was standing with a sign that read "No War for Oil." Bursey said that hundreds of Bush supporters stood around him, along with four other protesters, all awaiting the president. In a scene that has played itself out repeatedly during this campaign, most anti-Bush protesters that day were kept in a "free-speech zone" located three-quarters of a mile away—well out of ear- and camera-shot of the president. Bursey and the other protesters were told several times to move—and did—but Bursey never went quite far enough away to placate the Secret Service.

Secret Service agent Holly Able testified at trial that she then gave him four options: He could go to the demonstration area, get in line for the rally (if he had a ticket), go home, or go to jail. When he refused to disappear from sight, Bursey was arrested by airport police, thrown into a police wagon, and taken away. He was slapped with a local charge at first—trespassing—but that was quickly dropped. Bursey, after all, had been standing on public land. Then the federal charges were trotted out.

Most demonstrators' prosecutions don't get that far. Once a protester has been removed from the target of his or her protest, authorities tend to quickly lose interest. If charges are filed, they are often dropped, and few cases make it to trial. But something was different about Bursey. A lifetime's worth of justice-system enemies decided to get even, perhaps, or maybe his prior arrests and convictions made him too vulnerable a target to let slip by. Regardless, within days, U.S. Attorney Strom Thurmond Jr. slapped Bursey with a federal bill of information for violating the rarely cited law, of which Bursey (and most everyone else) had never heard.

Bursey was convicted in January and fined $500—far less than the potential prison time and $5,000 fine maximum. But there are a couple of elements to his conviction under this statute that should make everyone sit up and take notice.

The first is U.S. Magistrate Bristow Marchant's ruling that Bursey was not unreasonably singled out from the rest of the crowd for arrest, or the victim of selective prosecution. Yes, Marchant said, there were other people there. But those others never refused to leave (having, of course, never been asked), and thus they weren't breaking any laws. This has some resonance: At the Republican Convention, hundreds of delegates were free to scream whatever pro-administration thoughts crossed their mind, during speeches or otherwise. But the few credentialed hecklers who found their way onto the floor were mobbed, subdued, and dragged out by security before they could even be heard—their sloganeering drowned out by delegates' chants of "Four more years!" If Marchant's legal reasoning were adopted in the New York courts—and New York is certainly not bound by a South Carolina court, but may be persuaded by its thinking—this justification for the partisan singling out of protesters as opposed to cheerleaders might gain even more legitimacy.

It's also worth noting how easily the government made its case for setting up a seemingly boundless no-protest zone around the president's route. In court, prosecutors argued that the restricted area was about 100 yards wide, stretching approximately a mile down Airport Boulevard. But there was no way to know that on Oct. 24—when there were no visible markers and nobody willing to tell the protesters where the boundaries might be. More confusingly, cars and trucks were being allowed to travel through the area the whole time—some of which were dropping off ticket-holders planning to attend the rally. Marchant noted all this, but found none of those conditions unreasonable. Fast forward again to New York, where there were numerous cases of pedestrians arrested simply for walking down a sidewalk that moments before had been open to all passers-by. The Washington Post reported Monday on a man who'd been arrested on his way to buy soup at the Second Avenue Deli, when he walked into a police sweep; he was reportedly detained for 25 hours. Another sweep grabbed an Associated Press photo courier who was then held for nine hours without charges. Federal and local authorities are making a habit of restricting randomly configured public spaces in the name of security. Bursey's conviction gives that tactic some legal weight.

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