How the anti-protest bill silences free speech.

The law, lawyers, and the court.
March 19 2012 6:25 PM

You Can’t Occupy This

The government says the anti-protest bill was just a small tweak of the existing law. Don’t believe it.

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The changes in Section 1752 thus really do matter because they permit those in power to relegate their detractors to perform their political speech in remote locations, far from the public and the press. They do so in the name of protecting the security of the government official, despite the fact that their actual motivation for doing so has everything to do with the message of their opponents. Law professor Timothy Zick of William and Mary Law School published an outstanding analysis of what are known as “spatial tactics” in the Texas Law Review a few years back. When it comes to relegating demonstrators to obscurity, two approaches predominate: keeping protesters outside an expansive, sanitized bubble that surrounds the very event they have come to protest, or allowing them to come closer, but only within the confines of heavily policed “protest pens” that one federal judge likened to temporary internment camps.

Here’s one way the new legislation becomes doubly problematic: The exclusion zones imposed by Section 1752 have no natural or intuitive spatial boundaries. They can be as large as law enforcement claims is necessary to ensure the security of whoever the Secret Service is protecting. The “free speech zone” is a moving target, not a delineated area.

Brett Bursey learned that distinction the hard way. The 50-year-old brought an antiwar sign to an October 2002 Bush rally at an airport in Columbia, S.C. Police and Secret Service agents told Bursey to take his sign to a free speech zone a half-mile away or face arrest for trespass. He refused.

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Bursey knew more about state law than the officers arresting him. Thirty years earlier, he had demonstrated against the Vietnam War when Richard Nixon visited the same airport, and demonstrators who refused to disperse were charged with trespass. The South Carolina Supreme Court threw out their convictions.  

So, not unreasonably, Bursey thought he’d get the same result in 2002, and to a point, he was right. The state trespass charges against him were indeed dismissed on the strength of the precedent that he himself had helped to set a generation earlier. But four months later, he was charged with violating Section 1752. His conviction was upheld on appeal.

Bursey later described his experience to the San Francisco Chronicle.  When he asked authorities if the problem with him staying in the area was related to the content of his sign, police told him that it did.  As to geography: “The problem was, the restricted area kept moving. It was wherever I happened to be standing.”

Bursey might not have been convicted had he not engaged in a lengthy discussion with police regarding the legality of his actions, which helped to prove that his incursion was willful. A showing of that mental state is no longer necessary, however. In futzing with the intent requirements of Section 1752, Congress may well have had Bursey in mind.

It is tempting to dismiss the exile of protesters as a reasonable concession to security in what law enforcement would like you to believe is a new age of terrorism. After all, they will say, demonstrators are not being silenced; they are merely being denied access to the forum of their choice and the chance to amplify their own message by presenting it against the backdrop of the message they oppose. But that is precisely why we should be concerned.

Whatever they have come to say, the presence of demonstrators at these events carries a powerful message in and of itself  that cannot be delivered as effectively in any other place. Being permitted to deliver their message in the same forum and at the same time as the speaker they oppose highlights the passion and commitment that animates the protesters. It underscores the existence of dissent, which is precisely what those who would sanitize the space around high officials would have us forget.

In short, citizen protests puncture the pretty, patriotic illusion of a focus-grouped, Photoshopped media event, and replace it with the gritty patriotic reality of democracy in action.  That’s why the teeny cosmetic changes to Section 1752, which purport to be about new kinds of security, are really all about optics. They conflate dissent with danger, a Cold War habit which America was beginning to outgrow, but which after 9/11 seems to be a permanent part of the political landscape.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Raymond Vasvari practices First Amendment law as a partner at Berkman, Gordon, Murray & DeVan in Cleveland. His blog, Somewhere Becoming Rain, deals with the First Amendment, among other things.