The Vigilant Perspective:
Think Critically

(by Thomas)

DATE 5/30/96:

The subtitle of Larry Van Dyne's "TROUBLE MAKERS" (Washingtonian Magazine, February, 1996), strengthens an old suspicion: "We get more protesters than any other city in the world.... Behind the scenes, two men decide what you can and can't do." Next to those words Rick Robbins and D.C. ACLU Director Art Spitzer stand back-to-back in a full page photograph. Triangulated in the background are my words, "LIVE BY THE BOMB, DIE BY THE BOMB," visible on Concepcion Picciotto's sign at our 15-year peace vigil in Lafayette Park. The story concludes, "All of which goes to prove that in ... the capital of the federal government, nothing is ever simple," and particularly when it comes to "symbolic free speech under the First Amendment."

Mr. Van Dyne told a long, busy story about Mr. Spitzer championing the First Amendment in Yellowstone Park, a young conscientious objector; Richard Robbins, representing the government in joint-rolling contests, putting a friendly face on official war efforts; Women's Suffrage; the Million Man March; the Klu Klux Klan; private Bar Mitzvahs; "pro-choice, pro-life, bureaucratic racist" Park Police with a sense of humor; Forest Gump; and so much more that "TROUBLE MAKERS"' main theme, "what you can and can't do," was almost lost in the flood of colorful activity.

Robbins and Spitzer may have been "(a)mong the most experienced members of the subcommittee on demonstrations" sent by the American Bar Association to help draft legal codes for the former Soviet Republic of Belarus. Just the same, telling the "TROUBLE MAKERS" story from Mr. Robbins' perspective, with nothing more than Mr. Spitzer's amicable assent, may be like letting a couple of 16th century Catholic bishops explain how the sun revolves around the earth; one-sided, at best, a tale of monumental deceit, at worst.

A more objective position might be determined by triangulating from the photo: Mr. Robbins, devoted public servant with a career memorialized in "ten pages of small type in the Code of Federal Regulations," Art Spitzer, the loyal opposition, and, quietly in the background, "William Thomas, who even today continues a vigil in Lafayette Park."

Remember the golden days of democracy -- before the fences, barricades, fleets of security vehicles, hordes of armed guards and packs of dogs presently guarding the Park? Remember when supporters, or detractors, of dignitaries visiting the White House could throng the sidewalks adjacent to Pennsylvania Avenue, cheering or booing the arrival of their hero/demon? Remember the first time the Secret Service (S.S.) restricted the Avenue under the excuse of "national security"? It wasn't that long ago. Since they don't remember, not yet born when fear got a really firm foothold, many of the school children visiting the park today see the stark reality, but don't think to ask, "How did we get here?" Some of the elders, like Senator Rob Grams (R-Minn), Eleanor Holmes Norton (D-D.C.), and others are beginning to apprehend the radically reordered status quo, and are starting to wonder whether fear is "an acceptable response in a democracy."

"TROUBLE MAKERS" didn't reach these questions. We believe a close analysis shows the path was laid line upon line, precept upon precept, beginning from the First Amendment --- arriving at a point far different from what the framers of the Constitution imagined.

HIS STORY, TRUE STORY?

"Many of the rules governing White House demonstrations date to the early 1980s, when people began holding long-term, round-the-clock peace vigils there," Mr. Robbins said, claiming his legal code was "designed to balance the guarantees of the Constitution's First Amendment." Mr. Robbins likes to point out that "vigils" are still "protected." Mr. Robbins and Mr. Spitzer are certainly eloquent. I can visualize Mr. Spitzer nodding sagely in the background. Listening to their subjective perspective, one might get the impression that round-the-clock peace vigilers conspired to force them into "balancing" freedom of expression.. Funny, neither of them mentioned how many times I've been locked-up, assaulted, and harassed.

The key "reality" in this story is my "round-the-clock peace vigil." As evidenced by "TROUBLE MAKERS," this reality may be seen from widely divergent perspectives. Robbins and Spitzer can't tell the story without at least mentioning our vigils. After all, Concepcion has become a living monument to free expression. Her picture, over the caption, "It is the right of every American to take a stand and make a point in Lafayette Square," appears in two printings of the Berlitz Travel Guide. Tour groups from around the world seek her out, and tour guides point to her as an example of free speech, "what makes America great." And enough learned jurists have studied the body of law surrounding our vigil to qualify the story as a bedeviling case.

I began my vigil on June 3, 1981, my purpose, with a sign reading, "Wanted: Wisdom and Honesty." My purpose was to communicate -- as effectively as possible with the limited resources available to me -- on issues of broad public interest. My purpose has not changed.

In those days the First Amendment stood like an invisible shield, insuring my sign and expressive presence absolute protection against onslaughts of official displeasure expressed through police force. Of course, "First Amendment protection" doesn't mean you're not going to get pestered by the police. Even before Mr. Robbins started meddling with the existing law, the police were giving me headaches, arresting me on charges of tresspassing, and unlawful entry for being in the park. The First Amendment kicked in when the court system, affording "protection of law," tossed the bogus charges out. Which, of course, didn't prevent the police from driving me out of town, and stranding me with the warning, "Don't come back." But I could get away with going back, because the law protected me, and I wasn't enough of a threat to be worth shooting.

Beginning from the premise that I know nothing at all, I still cannot ignore the reality of knowing what is going on inside my own head. Because there is no doubt in my mind that my purpose for being in Lafayette has been to promote healthy and robust public discourse, on issues of broad public concern -- "an invaluable part of every American's heritage" -- I cannot help but know that anyone who attributes a different purpose to my continuous presence in the Park is mistaken.

For me, the first question is, "Am I trying to say anything worth listening to, or am I totally out of my mind?" I don't want to be crazy. Personally, however, I find it tough to know whether I'm being subjective enough to figure out whether I am. In search of a balanced prespective, I've asked this question repeatedly.

I've also questioned the practicality of my vigil. Figuring that it is more realistic for me to try to keep the world from changing me, than for me to try changing the world -- while testing the system, to see if it works -- I've decided to continue the vigil until I am shown something better to do.

Early on, an incident began which indicates that I may be saying things of broad public interest, and it just takes time for folks to overcome their prejudices before they can really think about what I'm saying. About 1 a.m. one summer morning a student and his friends were returning to their dormitories, a little more than slightly tipsy after a Friday night-on-the-town. I was lying on the sidewalk by the White House fence. As they passed, they taunted, "Get a job, you bum." I engaged them in conversation. They sat on the sidewalk, we talked for several hours, until one of them became very angry when asked about the practicality of achieving his professed aims through his chosen academic curricula. I pressed the question, and he left, cursing in anger. About six months later the young man returned. He introduced himself as Al Tanzi.

"I don't know whether you remember me," Al said, "but we had a discussion one night that ended on a very heated note. Since then I've been thinking about some of the things you said. I'm not saying that I agree with you, but it's occurred to me that I might not understand what you're saying. I wonder whether you would mind if I ask you some questions." Over the years Al came to talk many times; changed his name, his career goals, and his writing improved.

To me this incident proved, not only that my "continuous presence" communicates an easily understood symbolic message, but also that there is a practical reason for remaining at one place ---- when someone wants to ask a question, they know where to find me -- for the purpose of resolving the divergent perspectives of reality which preclude the realization of Peace through Reason.

My "vigil" is reality. From my point of view, and established law, in the beginning my "vigil" was "constitutionally protected activity." I know the purpose of my "vigil." Others can preceive the intended symbolism of my "vigil," thus, even if I'm crazy, the thinking by which then-Circuit Court Judge Kenneth Starr justified my imprisonment must have been either crazy, or malicious. The real tragedy here is that I don't have the temperment or power to constitute a danger to myself or others, Mr. Starr does.

OUR STORY, FREEDOM'S FATE?

Except in hot wars, a well-established status quo isn't smashed in a single day. Big legal changes come about incrementally. Still, in the relatively short life of our fifteen year old vigil, we've witnessed macrocosmic social change: Internationally, the fall of the Evil Empire; domestically, the rise of the largest prison population on earth. We've heard heads of state articulate lofty principles. In the microcosm we've experienced the perversion of stated policies as applied in reality.

"The White House sidewalk has been a popular place to mount demonstrations for years," Mr. Van Dyne explains, noting that Lafayette Park was the site of "the opening skirmish in the legal battle (which) arose in 1969 (when) the courts issued a split decision," requiring demonstrators to give the Park Service advance notice of demonstrations involving more than 24 people. With that decision, the government thrust a boot into the First Amendment status quo, and launched Mr. Robbins, who arrived in D.C. as a young conscientious objector from Austin with aspirations to litigate water rights, on a career as "the Park Service's liaison with ... protesters."

After the 1969 split decision, the Vietnam War ended, and things were pretty quiet during the seventies. Of course, Mr. Robbins had the government's basic everyday problems with "balancing" First Amendment activities; there had been efforts to crush the peace vigil during Vietnam, the impeachment demonstrations during Watergate, and Stacy Abney's vigil in 1976, which that "sleep" in the course of a "vigil" must be "expressive conduct," protected by the First Amendment. Until 1984, the courts frustrated Mr. Robbins & Company's efforts to throttle dissent.

From our point of view, in the beginning our "vigils" were "constitutionally protected activity." Since I began my vigil, Mr. Robbins has written four regulations, each of which transformed some aspect of our "protected activity" into "a crime." Mr. Robbins' motives remain unknown. Some circumstances provide a basis to argue that he was well-intentioned. At other times he appears deceitful on certain key points, in some cases he might seem malicious. In any event, Mr. Robbins' handiwork has created "tools" for justifying abusive police force and, thanks to assistance from those in positions of power, imprisonment. Technically, a few remnants of the First Amendment have withstood public apathy and Robbins' artfully drafted rules, but unless I'm kidding myself, our consistent vigil is due entirely to our own pig-headed determination, and owes nothing to the Robbins/Spitzer balancing act ... save a hard time.

"There has not been a single day when we did not have at least one First Amendment suit against us," Mr. Robbins boasts, a notable achievement for a public servant in a democracy. This accomplishment, I believe the paper trail shows, owes much to a court system that failed to subject Robbins' Rules, his superiors' intentions, or his subordinates' enforcement actions to more than minimal scrutiny, and which applied "official immunity" as might makes right.

In real terms, 1981 to 1996 is not a long time. My vigil has hardly changed; two people, Concepcion Picciotto and Ellen Thomas, have joined the effort as a full-time commitment. In terms of free expression, the past fifteen years have wrought significant negative change. Scores of people have come to the Park to devote themselves in varying degrees to public communication; many experienced abusive police enforcement of Robbins' rules, causing most to terminate their communicative efforts.

The "camping" regulation, has been the most abusive in human terms, ultimately leading to the death of a man in December 1994. His last three publications euphemized our vigil as "The Current Situation in Lafayette Park." Each regulation eroded rights which were well established during his own brief stint as a demonstrator.

Mr. Robbins' work product is an instructive study on the decay of what has been called a chief distinction between democracy and a totalitarian regime. His life's labor is summed up in multiple thousands of pages in federal publications, administrative records, and legal documents, transcripts and depositions of testimony about "security concerns," and "significant aesthetic interests," a body of documents which trial courts have described in part as "incredible," or raising "significant constitutional questions," issues which higher courts just ignored.

Subjectively, the story documents forces which have combined to stifle freedom and pursuit of personal excellence. Objectively, the story has reverberated across the nation as Federal Court decisions (the law of the land), and police enforcement (the law in reality). Perhaps the story may help explain how a free society slid into an Orwellian state.

REGULATION #1: "CAMPING," 1982

It was more than a decade, June 4, 1982 to be precise, before Mr. Robbins emerged with a new, First Amendment prophylactic, the "camping" regulation. This crowning achievement would ultimately boost Robbins to regulatory stardom, and create employment for a small army of police, attorneys, clerks, office personnel and judges.

Burying democratic civilization under mindless bureaucratic regulation is long, tricky work. In the beginning Robbins' "camping" revolution was twice firmly rejected by the court system. The tricky part was making it look "reasonable." On March 13, 1983, an en banc panel of the D.C. Circuit Court of Appeals held the regulation to be unconstitutional. Several judges held it was the kind of regulation that makes "bad law."

It wasn't until June 25, 1984, after Mr. Clark replaced Mr. Watt as Secretary of Interior, that Justice White, writing for a majority of the Supreme Court in Clark v. Community for Creative Non-Violence, reversed the lower court, condoned Mr. Robbins' "camping" coup, and overturned precedent established at the foundation of the nation. However, Justice Brennan wrote a dissent with Justice Marshall, painstakingly identifying a fatally flawed fact finding system.

"There are facts in the record of this case that raise a substantial possibility that the impetus behind the revision may have derived less from concerns about administrative difficulties and wear and tear on the park facilities, than from other, more 'political,' concerns," Justice Brennan wrote. "(M)y intention is to illustrate concretely that government agencies by their very nature are driven to overregulate public forums to the detriment of First Amendment rights, that facial viewpoint-neutrality is no shield against unnecessary restrictions on unpopular ideas or modes of expression, and that in this case in particular there was evidence readily available that should have impelled the Court to subject the Government's restrictive policy to something more than minimal scrutiny."

Mr. Spitzer was on that case, but you won't find it on the ACLU's Greatest Hits web site. As indicated by a long list in Shepard's Citations, Mr. Robbins' high court victory laid the groundwork for illogical, repressive legal decisions by federal courts across the nation, setting the stage for a series of progressively intrusive regulations.

BAD LAW IN ACTION

Arbitrary enforcement, injustice, violence and even death, mark the history of the "camping" regulation in the field. Many people still remember Marcelino Corneil, the man shot to death on the White House sidewalk in December, 1994, but few triangulate to a key proximate connection: the "camping" regulation was the pretext used by Park Police Officer Stephen O'Neill to kick Marcelino and hit him with a nightstick, initiating the incident which ended in fatal shots hastily fired by another agent, "Officer X", who the Park Police refused to identify.

For almost ten years Concepcion had flown two flags over her signs. In 1988, years before Officer O'Neill joined the force, the Park Police once seized Concepcion's flags. After Judge Joyce Hens Green ordered the police to return the flags. The flags flew over Concepcion's signs, without incident, until September, 1994, when Officer O'Neill began a personal campaign against our vigil. Unilaterally declaring Concepcion's flags to be "violations of the regulations," O'Neill routinely initiated unpleasant confrontations in which he threatened to arrest us. Several weeks before Marcelino's shooting I wrote to Mr. Robbins, informing him of Officer O'Neill's practice of arbitrarily threatening to arrest us. and requesting an investigation of Officer O'Neill's disturbing threats. Characteristically, by the time Marcelino was killed Mr. Robbins still had not acknowledged my request.

After the killing, concerned with Mr. Robbins' indifference and the fact that police officers were literally getting away with murder under color of his crafty regulations, on December 22, 1994, I filed a civil action, requesting a Temporary Restraining Order (TRO), to remove the trouble making officers from duty in Lafayette Park

A TRO is an emergency measure which remains in effect for only 10 days. In any case where I ever filed a TRO application, the court held a hearing on the motion within 24 hours, because that is the way the system of "due process" is supposed to work. This case was assigned to U.S. District Court Judge Charles Richey, who set the TRO hearing for fifteen days later.

Aghast at Judge Richey's leisurely approach to fact finding and due process, I filed a motion suggesting that, since he didn't seem to be taking the matter seriously, he consider dismissing the complaint as frivolous, thus saving his own time, while permitting us an opportunity to hasten justice by asking the Appeals Court to determine whether the case was frivolous. Judge Richey held, "the Court has no intention of dismissing this case sua sponte as it does not view the matter as frivolous."

Although Mr. Robbins told Mr. Van Dyne that he "make(s) a living negotiating demonstrations," which is a claim he had repeatedly made in sworn testimony during numerous court appearances, in the White House shooting case the U.S. Attorney argued Mr. Robbins wasn't culpable because he wasn't responsible for acting as a liaison with protesters. The only "evidence" entered by the government to support that claim was a letter, dated January 20, 1995, written by Randy Myers, on behalf of Mr. Robbins, ostensibly in response to my letter of November, 1994. Less than minimal scrutiny figured largely in the outcome.

At first U.S. District Court Judge Charles Richey held that the case should go to trial on the issue harassment over the flags. Finally, without holding an evidentiary hearing, or even bothering to determine the true identity of "Officer X," he dismissed the case against O'Neill, Mr. Robbins, et. al., on the grounds of "official immunity."

Question: Did Mr. Robbins lie to the Washingtonian when he claimed to make a living as a "liaison with protesters," or did the U.S. Attorney mislead the court?

Vigil Continued .. Mr. Robbins as Prosecutorial Assistant

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