The Assault on Free Speech, Public Assembly, and Dissent

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A National Lawyers Guild Report 43 Criminalizing Political Expression at Demonstrations P olicing tactics during demonstrations include establishing screening checkpoints; creating so-called free-speech zones; conducting mass false arrests and detentions; employing pop-up lines; using dangerous rush tactics with police on motorcycle, bicycle, and horseback; and using deadly “less lethal” weapons. Other tactics include closing streets and public sidewalks to people who are not carrying event-approved identification, and stationing police with video cameras on rooftops and deploying officers to photograph and film people in the area, including people who are not attempting to enter restricted zones. Checkpoints Police checkpoints, also called screening checkpoints, are a relatively unprecedented security measure in terms of protests in which all bags are subject to search at a designated checkpoint. In addition, protesters’ banners and signs are inspected to disallow large poles that police allege may be used as weapons. Checkpoints can create bottlenecks, slow down the process of getting to the protest site, and discourage would-be protesters from attending. Word that checkpoints will be employed can in itself have a chilling effect on First Amendment activities. Some would-be demonstrators may choose not to attend upon learning of possible personal inspection by police before reaching the demonstration. This is particularly true for people from communities that already feel targeted, such as people of color, immigrants, and religious and ethnic minorities (e.g., Muslims, Arab Americans, and South Asians). <strong>The</strong> District of Columbia announced that it would use “screening checkpoints” around the National Mall area and the Pennsylvania Avenue parade route during the 2001 presidential inauguration in Washington, D.C. After making this announcement, the District failed to respond to questions from attorneys for demonstrators seeking to know what guidelines would be used, so that protesters could know what restrictions would be in place. Leaving so much to the discretion of the police always entails the danger that individuals will be unconstitutionally singled out on the basis of their political
44 <strong>The</strong> <strong>Assault</strong> on Free Speech, Public Assembly, and Dissent viewpoint or racial, ethnic, or religious background. <strong>The</strong> Partnership for Civil Justice, also litigating on behalf of the National Lawyers Guild, filed a lawsuit raising concerns that the checkpoints would be used to exercise political and racial profiling. <strong>The</strong> suit, International Action Center v. United States, 119 sought a preliminary injunction requiring the government to specify the guidelines that would be employed. While the injunction was technically denied, the Court shared many of the stated concerns, calling checkpoints “inconsistent with our way of life” and noting that “the very term checkpoint has...an odious connotation.” <strong>The</strong> relief sought was largely granted at the preliminary hearing, in which Judge Gladys Kessler pressed the government to provide details and explain the basis on which searches would be conducted. <strong>The</strong> government assured the Court that aside from the visual inspection of containers, the police would be held to the Terry v. Ohio 120 standard, under which they may not stop or “pat down” anyone without a legitimate, articulable suspicion that the person may possess a weapon. <strong>The</strong> Court emphasized that it was not granting further relief because of those representations. Because of the First Amendment concerns raised by the Plaintiffs, the government was put on notice that the kinds of excesses seen in recent demonstrations were of grave concern to the Court and would not be tolerated. <strong>The</strong> District of Columbia Metropolitan Police Department transferred policing authority to the Presidential Inaugural Committee in policing checkpoints along the Inaugural Parade Route. Furthermore, the Court granted the relief sought against the District of Columbia and issued an injunction against an unconstitutional provision that required a permit for all speeches. Describing parts of Miami during the 2003 FTAA protests, reporter John Pacenti of the Palm Beach Post wrote, “Security fences cut up downtown like a jigsaw puzzle, with numerous checkpoints.” 121 Checkpoints with armed officers were established to enter the frozen security zone around the Intercontinental Hotel, where FTAA meetings were held. Several streets were off-limits to anyone without proper credentials. Members of the embedded media and local businesspeople were given credentials. Yet the process for issuing credentials was “greatly compromised,” according an AFL-CIO after-report. Most credentials did not have a photograph of the bearers. Media credentials had photographs, but the means to obtain the credentials proved that possibly counterfeited letterhead and even
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The Assault on Free Speech, Public Assembly, and Dissent

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