PROTEST BAR SHRINKS
ANTI-WAR ACTIVISTS FACE CHANGED LEGAL TERRAIN
LEGAL TIMES WEEK
by Tom Watson
January 28, 1991
Section 7.96 of the Code of Federal Regulations may not sound much like an instrument of oppression. But to protesters of the Persian Gulf war and their lawyers in Washington, It is the next brick in the wall the government is building to obstruct domestic
The National Park Service wants to amend Section 7.96 to stop demonstrators and others from leaving bundles of bedding, clothing, and household items in Washington's historic Lafayette Park. The Service argues that protesters have helped turn a scenic tourist attraction -- just across Pennsylvania Avenue from the White House -- into an unsightly mess.
To combat the problem, the Park Service has proposed limiting each person's property to a patch of the park no greater than three cubic feet.
But that plan strikes some lawyers as a barely veiled assault on demonstrators' rights to petition the government from the nation's premier stage for displays of dissent.
"This is just another way of trying to clear people out of this important area,: says Sebastian Graber, a solo practitioner based in Madison County, Va., who has long warred against government restrictions on political speech.
Welcome to the changed legal landscape of protest, circa 1991.
Gone are the inflamed clashes over the core components of free speech that marked anti-war protests in the Vietnam era and that served as the grounds for decision in court case after court
case. The major questions of content seem to be settled. What debate remains in these troubled days of Operation Desert Storm is over form -- not over what protesters can say, but how, when, and where they can say it.
To Graber and his colleagues in the so-called protest bar, it's an insidious debate. The government lost most of its challenges to political demonstrations in the 1960's and early 1970's, they point out. Only in the last decade, they argue, has the government assembled a solid winning streak in placing restrictions on dissent -- by strategically focusing on the time, place, and manner of protest, rather than the substance of protesters' speech.
"The government is going through the back door to do what it couldn't do through the front door." says one veteran member of the protest bar.
But government officials, past and present, defend such restrictions -- limiting the size of signs, for example, or labeling as off-limits a certain stretch of the White House sidewalk.
"Our job is to allow as wide latitude as possible for the expression of views," says Jay Stephens, the U.S. attorney for the District of Columbia. "But at the same time, we have to protect citizens law-enforcement officers, and public property."
Joseph diGenova, Stephens' predecessor as U.S. attorney here, adds that the Supreme Court has sanctioned the various regulations that have triggered the protest bar's complaint.
"The court is the appropriate arbiter of these questions, and the court, not the government has decided that reasonable limits on certain public areas are acceptable," says diGenova, now a partner in the D.C. office of Chicago's Hopkins & Sutter.
DiGenova argues further that those limits have done little if anything to erode protesters' First Amendment rights to free speech and free assembly.
"The bottom line is that the Mall, the front of the White House, and Lafayette Park are all filled with people protesting America's war policy, " diGenova says. "I see vigorous, healthy protest going on, as it should be, I don't understand what the problem is."
Even some of the protest bar's allies suggest that it is hard to get too worked up about the technical parameters placed on today's political debate.
"We have not been happy with the regulations that have been imposed and upheld," says Arthur Spitzer, legal director of the American Civil Liberties Union of the National Capital Area, who has challenged some of those regulations in court.
"But surely I would agree that the right to have a crowd of 20,000 demonstrators in Lafayette Park is still intact -- and is more important than the right to have three signs per person instead of two." Spitzer adds.
Protest lawyers are nonetheless determined to fight the tide they say began turning against them back in the early 1980's.
At that time, a man named William Thomas decided to launch a 24-hour vigil in front of the White House to encourage disarmament. Thomas drew a crowd - and concerns from the National Park Service that the small gatherings posed aesthetic and security problems.
After another protester threatened to blow up the Washington monument, the Park Service, in conjunction with the Secret Service, undertook a major overhaul of regulations governing park property. Among the regulations, upheld on appeal, were those that made it an offense punishable by fines and/or jail time to stand still along a specific 60-foot stretch on the sidewalk in front of the White House or to leave signs unattended in the vicinity.
Thus began a series of government victories that culminated in a 1984 Supreme Court case, Clark v. Community for Creative Non-Violence. In that case, CCNV leaders challenged the Reagan administration's ban on camping in Lafayette Park, arguing that it interfered with their chosen method of protesting the government's policies toward the homeless. The court was not convinced and affirmed the ban.
The "time, place, and manner" standard, which dates to Cox v. New Hampshire, a 1941 Supreme Court decision regarding the right of religious demonstration, continues to haunt protesters as they make their case against the war in the Persian Gulf.
"It lessens the impact of the demonstration," says Lynne Bernabel, a former Vietnam War protester whose D.C. firm, Bernabel & Katz, offers criminal defense assistance to demonstrators. "The only real way any demonstration reaches the public these days is through the mass media," explains Bernabel, who was among the lawyers last week gearing up to provide legal assistance to the anti-war protesters in the Jan. 26 demonstration in Washington.
"To the extent that you restrict the demonstration -- the size of the crowd that can collect, the type of peaceful protest, and symbolic action, and you're limiting the effectiveness with which protesters can get their message through, "Bernabel adds.
The resulting welter of regulations, others argue, leaves protesters fearing they need to consult with legal counsel before exercising even the most basic First Amendment rights.
"Before, you could feel free to go down to the White House, where the president lives, and petition for redress of your grievance," says Graber. "Well, now you can't feel free .... There are so many rules and regulations, you have to have a lawyer at your side just to determine what you can and cannot do."
But if protesters need lawyers more than ever, they do not have an especially large field to choose from. This is one of the few areas of the law that has expanded without causing a corresponding expansion in the number of lawyers lining up to take advantage of the change.
The protest bar is a small but intensely dedicated network, composed of aging Vietnam-era activists and their heirs, most of whom cut their eyeteeth on demonstrations involving U.S. policy
in Central America, the environment and abortion rights.
Veteran members say their ranks have shrunk significantly since the 1960's.
"We just don't have the number of troops we once had," says William Kunstler of New York's Center for Constitutional Rights, whose place in the annals of protest history was cemented when he represented the Chicago 7, charged with conspiring to incite a riot at the 1968 Democratic National Convention.
"In the 60's we had so many lawyers and law students who got into the whole aspect of supporting demonstrators, their civil rights and civil liberties, "continues Kunstler. "But we've come through the Reagan years, and a lot of our people who might have been into this type of work have been weaned away."
Many of those still practicing in the protest bar stay in contact via the National Lawyers Guild, an alliance of left-wing lawyers whose Mass Defense Committee gears up members for volunteer work virtually every time major political demonstrations are held.
Since hostilities broke out in the Persian Gulf, the Lawyers Guild has been on full alert. Its leaders established a toll-free telephone line for military men and women interested in finding out more about how to file for status as conscientious objectors. Armbands were manufactured; cards providing advice on how to handle arrest were printed up. And guild lawyers have mobilized for major anti-war demonstrations from San Francisco and Seattle to Washington and New York, recruiting law students to serve as legal observers -- bearing witness to arrests to aid defense efforts down the road -- and enlisting criminal defense lawyers whenever possible to assist in arraignment and other court proceedings.
Most Protesters who get arrested require limited legal assistance. Such crimes as blocking traffic or engaging in disorderly conduct are typically considered misdemeanors and are punished by citations the equivalent of traffic tickets.
Still, more extreme forms of protest require more vigorous legal help. Earlier this month, a group of people were arrested for slipping over the White House fence and dumping blood into a fountain. The group faces possible felony indictments for destruction of property and criminal trespassing.
Furthermore, some fear that such dramatic action could beget stiffer sentences than those received during the Vietnam war -- because of the more conservative complexion of the federal courts and mandatory sentencing requirements.
Thus far, however, the Persian Gulf conflict has been a relatively clam one for members of the protest bar. Lawyers for demonstrators and their counterparts in the law-enforcement community both say that their relationships is marked more by mutual cooperation than by the animosity that characterized the debate of U.S. involvement in Vietnam.
"The more police know, the more comfortable they feel," says Denise Wiktor, a D.C. solo practitioner who represents protesters.
U.S. Attorney Stephens agrees.
"Overall there is an effort to provide a more cooperative environment to avoid unnecessary confrontation and hostility." Stephens says, adding that his office makes a special effort to coordinate local law-enforcement activities aimed at protecting both political speech and public order.
Contributing to the sense of calm and collegiality is the fact that, with some exception, those protesting U.S. efforts against Iraq are not as virulently anti-American as some of their Vietnam-era predecessors.
But no one suggests that the protest bar has mellowed too much since its Vietnam heyday. Its members say passions likely will flare as war in the Persian Gulf drags on and takes its toll on public opinion back home.
"There's no flesh and blood on the war yet from the American point of view," says one former Vietnam protester well versed in the law protecting protesters. "But wait until the bodies start coming home. Then, you might see the temperament and the tactics of the demonstrators and their lawyers change."