Will Americans be able to exercise their fundamental right to protest at the major-party conventions in Boston and New York this summer? by Steven Stycos

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The Boston Phoenix.com
May 2004

Free speech and assembly on the line
Will Americans be able to exercise their fundamental right to protest
at the major-party conventions in Boston and New York this summer?
BY STEVEN STYCOS
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GOT LIBERTY? Although protesters in Boston have faced fewer problems than those in New York, the ACLU's Reinstein cites concerns about the marginalization of dissent.
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SEVEN WEEKS AGO, in a packed Philadelphia courtroom, protesters making plans for this year’s Democratic and Republican National Conventions won a major battle. You could almost hear the collective sigh of relief when Judge William Mazzola found Providence activist Camilo Viveiros and two co-defendants not guilty of charges that they assaulted Philadelphia police chief John Timoney during the August 2000 Republican National Convention. The "Timoney Three" were the last of 420 arrested demonstrators, including 43 people charged with felonies, to go on trial. They were also the last to prove the "R2K" prosecutions a spectacular failure: not a single defendant was sentenced to jail time, and most had their cases dismissed or reduced to misdemeanors. But those who think this means activists won the war against police intimidation at the upcoming conventions in Boston and New York should think again. While the lack of convictions may have embarrassed a few Philadelphia prosecutors and police, says R2K Legal Collective spokesperson Kris Hermes, ultimately they were "able to chill dissent, to silence dissent." Not only were Timoney’s repressive tactics widely seen as a response to the successful 1999 World Trade Organization demonstration in Seattle; after Philadelphia they were employed elsewhere, most notably in November 2003 at the Free Trade Area of the Americas meeting in Miami, where Timoney is now police chief. And now, as thousands of New Englanders prepare to demonstrate at the Democratic and Republican National Conventions this summer, many worry that the same tactics will be used again.

Already, anti-war activists in New York City, where Republicans will renominate President George W. Bush during the last days of August, have been told they cannot hold a rally in Central Park, and their legal requests for marches have gone unanswered so far. They fear a replay of the massive February 2003 demonstration opposing the US invasion of Iraq, which, they say, was disrupted by police. In Boston, where Democrats will nominate US Senator John Kerry for president during the last week of July, no protest permits have been issued, and lawyers for the American Civil Liberties Union of Massachusetts object to a new permitting process, which they say is overly bureaucratic. They also complain that a small "protest zone" is too far away from the FleetCenter to be effective.

Four years ago, similar problems in Philadelphia and Los Angeles led the ACLU to sue police in both cities before the national political conventions began, resulting in the removal of at least some of the obstacles placed in protesters’ way. City officials in New York and Boston say, however, that they will accommodate nonviolent demonstrators. "We’re not looking to discourage peaceful protest in any way," says Paul Brown, the New York Police Department’s deputy commissioner for public information. "We’re looking to accommodate it." In Boston, "Mayor [Thomas] Menino has said repeatedly, ‘What would a convention be without protests?’" says mayoral spokesman Seth Gitell. "That’s democracy at work."

The extent to which local officials are calling the shots remains uncertain, however. The US Secret Service, which imposes a "security zone" to protect major political figures like Bush, Kerry, and Vice-President Richard Cheney, is a shadow presence behind local police departments. The Secret Service, observes Christopher Dunn, associate director of the New York Civil Liberties Union, was "the common denominator" in alleged civil-rights violations in Philadelphia, Los Angeles, and Miami. In a pending lawsuit the ACLU also accuses the agency of discriminating against Presidents Bush’s critics, confining them to protest areas where the president and media will not see them.

Protesters and police frequently clash at political conventions. Four years ago, at the Democratic National Convention, Los Angeles police attacked what the ACLU of Southern California characterizes as an overwhelmingly peaceful demonstration. During the melee, the ACLU contends, police intentionally fired rubber bullets at members of the press and hit them with batons. Meanwhile, at the Republican National Convention in Philadelphia, police threw scores of people in jail before they even had a chance to start protesting. And then, of course, there was the 1968 Democratic National Convention in Chicago, where police denied protesters a permit to hold a march against the Vietnam War. They then attacked marchers, in what a presidential commission subsequently characterized as "a police riot." According to John McWilliams’s The 1960s Cultural Revolution (Greenwood Press, 2000), some police officers took off their badges and started chanting, "Kill, kill, kill" before wading into protesters with their clubs. McWilliams writes that almost 700 people were arrested and more than a thousand injured.

Thirty-six years later, as activists organize to demonstrate in Boston and New York, many critics charge that the United States has criminalized protest.

THE POST-SEATTLE anti-demonstrator strategy, says Hermes, involves four steps.

First, prior to demonstrations, protesters are demonized by public officials, who often emphasize the role of anarchist groups and charge that outsiders are coming to town to engage in violence and destroy property. Two months before the 2000 Republican National Convention, for example, Philadelphia mayor John Street was quoted in local newspapers as saying, "I have strong feelings about First Amendment stuff, but we have got some idiots coming here. Some will come and say whatever obnoxious things they want to say and go home. Some will come here to disrupt, to make a spectacle out of what’s going on. They are going to get a very ugly response." Philadelphia protest leaders also viewed the leaking of a Philadelphia Department of Human Services plan to take custody of 1000 children — if their parents were arrested during a welfare-rights protest at the convention — as an attempt to lower turnout.

In addition to discouraging public participation in the demonstrations, Hermes says, pronouncements about violence and arrests help police justify placing severe limits on demonstrations. In 2000, the ACLU was forced to go to federal court in both Los Angeles and Philadelphia to lift protest restrictions. In Los Angeles, the ACLU overturned a 186-acre "no-protest zone" around the convention hall, and a new, more lengthy permitting process. In Philadelphia, a no-protest zone was unnecessary because the First Union Center (now the Wachovia Center), where Republicans met, is privately owned and surrounded by huge parking lots, so protesters were unable to get anywhere near delegates. Nevertheless, two protest groups were unable to receive permits to march elsewhere until the ACLU sued in federal court.

During the second step in discouraging protest, Hermes says, police harass and intimidate activists by engaging in surveillance, as well as illegal stops and searches. In Philadelphia in 2000, two men were seen taking photographs of weekly protest meetings at the Women’s International League for Peace and Freedom office. Initially, they denied being police, but when the Philadelphia Inquirer traced the photographers’ license plates, they acknowledged that they were cops. In Los Angeles — after police harassed protesters by recording the license plates of those who entered the building, and arrested others for jaywalking — the ACLU won a temporary restraining order barring police from entering demonstrators’ headquarters without a search warrant.

The third step? "Arrest masses to destabilize the protests and worry about the Constitution later," says Hermes. Perhaps the most dramatic example of this tactic was the arrest of 75 people on the second day of the 2000 Republican National Convention at what has become known as "the Puppet Warehouse." Police surrounded the warehouse as demonstrators were preparing props, including skeleton figures to represent Texas inmates executed during George W. Bush’s tenure as governor, and a pink paper pig’s head to illustrate the corrupting influence of money on the criminal-justice system. All those inside were arrested, and the props were dumped into a garbage truck. Subsequent court proceedings revealed that four undercover Pennsylvania state troopers, posing as union carpenters, had conducted surveillance inside the warehouse. Activists also learned that police secured a search warrant by using information from the right-wing Maldon Institute, which claimed demonstrators were funded by "Communist and leftist parties."

High bail — reaching as much as $1 million — was imposed for those arrested by police. This kept key organizers in jail until the convention was over and forced protesters to switch from criticizing the Republican Party to fundraising and jail-solidarity work.

As a fourth and final step, Hermes says, police departments intent on undermining protest "maliciously prosecute, whether or not there’s a viable case." In Philadelphia, nearly all the cases against the convention protesters fell apart in court. During Viveiros’s trial, for example, the city pressed ahead with police chief Timoney’s story about how, after Viveiros purportedly struck him with a bicycle, he wrestled the pony-tailed activist to the street and helped arrest him. This assertion came despite the prosecution’s knowledge that a defense video showed Viveiros calmly walking with a patrolman and cooperating with his arrest before the officer shoved him to the ground and punched him in the ribs. The Philadelphia prosecutions, however unsuccessful in the end, took a toll on activists, forcing them to raise money and assist those on trial, and leaving them with little time and resources to organize against the political issues that prompted the protests in the first place.

WHETHER POLICE in New York and Boston will employ the anti-demonstrator tactics described by Hermes remains to be seen. In both cities, ACLU lawyers are meeting with police to establish sites for marches and rallies, but no agreements have been reached. Similar efforts failed in Philadelphia and Los Angeles in 2000. Discussions in Boston have centered on three issues, according to John Reinstein, legal director of the ACLU of Massachusetts: where people can march and assemble, apportioning space to demonstrators, and police practices. The ACLU criticizes a new permitting process for convention-week protests, according to the Boston Globe, as a bureaucratic maze that will discourage free speech. The city, however, defends the procedure as necessary to coordinate protests and expedite applications.

The ACLU also objects to a designated protest area near Haymarket Square, two blocks away from the FleetCenter. The area does not meet court requirements that protests be allowed "within sight and sound" of convention delegates. "The convention planners," Massachusetts ACLU executive director Carol Rose told the Boston City Council in February, "appear to have given short shrift to the First Amendment."

The problem, says Reinstein, is a shortage of open space near the FleetCenter, especially since much of it has already been designated for the media, police staging, or convention busing. "We are working on an area where people can go, not where you have to go," confirms Mariellen Burns, a spokeswoman for the Democratic National Convention. The "protest zone" will have a stage and a sound system, she says. So far, 15 groups have applied for permits to demonstrate during the convention, according to Patricia Malone, director of the Mayor’s Office of Consumer Affairs and Licensing. About half seek to hold rallies on Boston Common, and the rest want to march in different parts of the city. No permits have been granted, she says. Requests must be submitted by July 10, she adds, and will be approved as they are received.

Activists expressed alarm, shortly after Boston was selected to host the convention, when Timoney visited the Hub to consult on security preparation. His track record in Philadelphia should disqualify him, critics say, from providing advice on how to handle protesters in Boston. However, host committee Boston 2004 communications director Karen Grant insists that the meeting was only an informal visit. "He was never hired as a consultant, and as far as I understand there are no plans to do so," Grant says, adding, "He’s not going to have any role."

With Timoney out of the picture, and Boston’s benign history of handling demonstrations, Reinstein does not expect major problems with police misconduct. "Boston has not seen the kind of interference with the right of assembly that people in New York have experienced," he says. Boston city councilor Chuck Turner, a Green-Rainbow Party member who represents largely black Roxbury, agrees. "There is an attitude in the [police] department that is cooperative with demonstrations," Turner says. Although outside police agencies will certainly be involved with the convention, he adds, "I would hope that [attitude] would continue." Turner, who is helping to organize some protests, says that although many activists support Kerry, they have no confidence in his ability to change the country’s direction "unless people stand up and demand change." He adds, "Both the Democrats and Republicans are supporting militaristic policies that make it impossible to deal with the needs of people."

Perhaps the most ambitious political action for the Democratic Convention is being planned by the Boston Social Forum. Organized by a variety of groups, including the American Friends Service Committee (AFSC), Massachusetts Jobs with Justice, Public Citizen, and several unions and peace groups, the event is modeled on the World Social Forum, an annual international gathering of activists. The group has rented the University of Massachusetts Boston campus for the weekend before the convention, says Paul Shannon, a program staffer for the AFSC in New England, and hopes that 3000 to 5000 people will attend workshops on corporate globalization, American foreign policy, health care, and other issues. Speakers, he says, will include black militant Angela Davis and former presidential candidate Dennis Kucinich.

Many of the same groups also plan "alternative parties," for Sunday, July 25, the night before the convention begins. At least three outdoor events, or "festivals with an edge," are planned for public parks, reports Joseph Gerson, director of programs for the AFSC in New England. The parties’ theme, says Gerson, will be cutting military spending by $100 billion to fund education, health care, housing, and other social programs. "What is real security?" he asks. "Real security means you have medical care. Real security means you’re not going to be scared that you can’t feed your children."

The AFSC will also bring its "Eyes Wide Open" exhibit to Providence before the convention, and then to Boston for the convention itself. Designed to promote understanding of war’s meaning, the exhibit features 770 pairs of boots, representing America’s war dead in Iraq, and a wall listing the Iraqi war dead. Among other political activities, the Bl(A)ck Tea Society, a Boston-area group that describes itself as "an ad hoc coalition of anti-authoritarians," is planning an outdoor concert, bazaar, and unspecified "massive decentralized actions," according to its Web site (www.blackteasociety.org).

Plans for large demonstrations in Boston are not yet well established. A New York–based anti-war coalition, United for Peace and Justice (UPJ), is planning a major event, though details have not yet been hammered out. In addition, the Washington, DC–headquartered leftist group Act Now To Stop War & End Racism (ANSWER) is advertising a march for Sunday, July 25, starting on Boston Common, although it has yet to receive a permit. "The US could not have invaded Iraq without the support of the Democratic Party," explains Boston ANSWER organizer Peter Cook. "As such, the Democratic Party should be held as responsible as the Republican Party for the invasion and occupation."

Bridging the month between the two conventions, the Next Step Collective is organizing a 276-mile walk from Boston to New York, by way of Providence, Hartford, and New Haven, to promote a variety of causes, including direct democracy, just and fair labor, sustainable food sources, and an end to corporate power, according to the group’s Web site (www.dnc2rnc.org). The Olympia, Washington, organization says the march will draw attention to "the two-headed Corporate Party," and encourage people along the route to work for change in their communities.

IN NEW YORK, plans for demonstrations are bigger and fears of police disruption are greater than they are in Boston.

The New York ACLU and protest groups worry most about a repeat of events at the February 15, 2003, anti-war demonstration. As part of a worldwide day of protest against the impending US invasion of Iraq, anti-war groups had proposed a massive march past the United Nations, followed by a rally. The police, citing security concerns, refused to issue a march permit. The ACLU then sued, but it lost in both federal district and appellate court. Defeated, protest groups negotiated arrangements to hold a stationary rally on First Avenue.

What followed, according to an ACLU report, Arresting Protest, was a civil-liberties mess. Police blocked side-street access to the rally site, so thousands of people could not get to the demonstration. As crowds grew, people pressed against police barriers and spilled into the streets. Applying what many witnesses called excessive force, police used horses and pepper spray to get crowds out of the street. More than 350 people were arrested, the report states, most for minor offenses. "Substantial numbers" of arrestees were driven around the city for several hours, the report continues, in dark unheated vans with no food, water, or bathroom facilities. Some were interrogated later about their political and religious activities. Those who made it to the rally area found themselves penned inside metal barricades, with few exit routes.

The NYPD’s Brown agrees that the February 2003 anti-war demonstration was a mess, but he blames the march’s organizers. The event was poorly planned, he says, and organizers did not provide the promised number of marshals to direct protesters. Frustrated that they could not get to the demonstration site, people moved barriers and problems started. "We were left to clean up their organizational mess," Brown says.

More recently, a March 20 anti-war demonstration, commemorating the anniversary of the Iraq invasion, went much more smoothly, according to both Brown and the NY ACLU’s Christopher Dunn. To encourage orderly access to the demonstration, New York police posted directions on the department’s Web site, Brown says. In addition, police allowed a march this time and, in response to suggestions from protest organizers, left more openings in barriers, so people could easily arrive and leave. "The police department handled it well, and I think the police department thinks the [protest] groups handled it well, and we’re all hoping that will be a model for the convention," says Dunn, "but we have a long way to go."

Three lawsuits filed after the February 2003 anti-war protest, which challenge the use of pens and horses, and searches of protesters, will go to trial in June. "These lawsuits," says Dunn, "are aiming at problems that are likely to arise at the convention."

Defending the NYPD, Brown says, "There’s this notion the police department has a political agenda. We could care less." Speaking of the upcoming Republican National Convention, he adds, "We want this to be done safely. We’re not going to tolerate any violence." So far, Brown says, 13 anti-war, environmental, abortion-rights, and economic-justice groups have submitted 15 requests for permits for demonstrations. Groups have been urged to apply by June 15, and police will make their decisions after that. Then, if a group is dissatisfied, he says, it can appeal to federal court.

The largest demonstration at the Republican National Convention may be an anti-war protest organized by UPJ. Seeking to be "the curtain raiser" for the event, the group has applied for permits to march past Madison Square Garden on Sunday, August 29, and then hold a rally at the Great Lawn in Central Park. While police have not acted on the UPJ’s march-permit request, the Parks Department, citing probable damage to the grass, denied the group’s request to use the Great Lawn.

Noting that huge events, including a papal mass and concerts, have been held on the Great Lawn, UPJ media coordinator William Dobbs says the group may launch a public campaign to force the Parks Department to change its decision. Organizers hope the march will attract hundreds of thousands of people who opposed "the Bush war-making agenda," Dobbs says, adding, "This is the only public space that can allow people to exercise their constitutional right to assemble in Manhattan."

Critics’ right to assemble on the Great Lawn already has the support of the conservative New York Post "‘Keep off the grass,’" the paper commented in a recent editorial, "appears nowhere in the First Amendment."

Plans for even more New York marches are in the works. Still We Rise, a coalition of low-income nonprofit groups, for example, has asked for a permit to march from Union Square to Times Square on Monday, August 30 to protest cuts in low-income housing vouchers and scientifically proven HIV-prevention programs, and the assault on immigrant civil rights. "We are marching," explains Jennifer Flynn, co-director of the New York Housing Network, "so the faces and voices of low-income New Yorkers are heard by this administration, and for that matter, whoever is going to challenge Bush." Not all protests will be marches. On August 31, a group named RNC Not Welcome plans to conduct "creative resistance outside the protest pens," according to its Web site (www.rncnotwelcome.org).

WHETHER ACTIVITIES outside the convention halls remain orderly will depend largely on protesters and local police. A far less visible factor is the US Secret Service, the federal agency best known for providing a safe zone around the president.

Although the Secret Service’s exact role in policing protesters is unclear, the ACLU alleges in a pending lawsuit that the agency does not play fair — or, in the words of the Massachusetts ACLU’s Reinstein, "Where you stand essentially depends on where you stand." Supporters of President Bush, the suit charges, are consistently permitted to demonstrate closer to the president than opponents are, and all demonstrators are placed farther away than neutral bystanders. By separating Bush from his critics, the suit contends, the Secret Service violates the US Constitution because he cannot hear complaints, and the media and the public are led to believe there is less dissent.

To buttress its case, the ACLU cites 15 examples of such discrimination since March 2001, elaborating on only one. Members of the Association of Community Organizations for Reform Now (ACORN), a low-income advocacy group, sought to demonstrate when Bush visited the US Treasury building in Philadelphia, in July 2003, to celebrate the printing of child-tax-credit-refund checks. While ACORN was told to protest diagonally across the street from the Treasury building, the suit alleges, pro-Bush demonstrators were allowed to gather in front of the structure. When ACORN’s lawyer complained, the activists were ordered to move even farther away. ACORN immediately went to federal court, and won a temporary restraining order allowing the anti-poverty group to return to its previous location. They did, but then, according to the suit, police parked large vans in front of protesters, blocking their view of Bush and his view of them.

Although he refused to comment on the lawsuit, Secret Service spokesman Thomas Mazur said the agency has a longstanding policy of protecting the president without making a distinction "as to the purpose, message, or intent of any particular group or individual."

Numerous protesters at the 2000 political conventions filed lawsuits charging that police violated their civil rights, but the litigation brought mixed results. In Los Angeles, in the aftermath of the 2000 Democratic National Convention, the ACLU collected more than $5 million, according to Carol Sobel, co-chair of the National Lawyers Guild’s mass-defense committee. Protesters sued after accusing the police of firing rubber bullets at demonstrators and strip-searching those arrested.

In Philadelphia, demonstrators had high hopes that the pattern of pre-emptive arrests, high bail, and failed criminal charges would lead to considerable civil penalties against the city. But nothing came of it. "We were just ground down," says Danielle Redden, a representative of the R2K Legal Collective, which grew out of the mass arrest of demonstrators in Philadelphia. "We were absolutely and completely overwhelmed."

Money and organizing focused on defending against criminal cases, like those of the "Timoney Three," Redden explains, and as a result, little remained to support the civil suits. In addition, the City of Philadelphia’s aggressive defense, which included the deposition of people from around the country and the collection of computer hard drives through subpoenas, threatened people’s privacy. Prior to the convention, Philadelphia also purchased a $800,000 liability policy to protect itself against police misconduct, according to the Philadelphia Daily News. In the only settlement made public, 24 of the people pre-emptively arrested at the "Puppet Warehouse" settled for a total of $72,000, the News reported, all of which was donated to nonprofit groups.

How police handle peaceful protests in Boston and New York will determine whether this year’s conventions produce another round of police-misconduct charges and lawsuits. As Donna Lieberman, executive director of the New York ACLU, put it in a statement last year, "Hundreds of thousands of people will be coming to New York next summer to engage in peaceful protest at the Republican National Convention. They are entitled to be treated with the same respect as those attending the convention itself."