home > resources > archive ACLU Reporter: Fall 2000 Table of Contents: Protest Watch: From the Ministerial Conference of the World Trade Organization to this Year’s Political Conventions ACLU of Utah Opposes Ballot Initiative A "English as the Official Language of Utah" ACLU of Utah Supports Ballot Initiative B "Utah Property Protection Act" _________________________ Protest Watch: From the Ministerial Conference of the World Trade Organization to this Year’s Political Conventions By Cori Sutherland, Deputy Director Over Memorial Day Weekend, representatives from the Escalante Wilderness Project (EWP) set up an information booth in front of the Grand-Staircase Escalante National Monument visitor’s center. A newly formed organization, the EWP sought to raise awareness of what it considered to be the federal government’s irresponsible management of cattle grazing on monument land. The EWP had applied for and received a permit from the Bureau of Land Management (BLM) for its activities, and volunteers looked forward to distributing literature and discussing their concerns with the many people who were expected to visit the area over the holiday weekend. EWP members had planned for a straight-forward exercise of their First Amendment rights: they were on property that was indisputably public, they had considerately notified the BLM before setting up their booth, and they hoped that their information would cause monument visitors to pressure the BLM to change its grazing policies. Instead, what they experienced were heavy-handed tactics that effectively curtailed their free speech activities. Although they were not blocking pedestrian traffic and their presence had not created a public disturbance, BLM officials demanded that the EWP move its booth 100 feet away from the visitor’s center. However, volunteers found that their new location severely compromised their ability to communicate with monument visitors, and consequently, they moved back to their original location. When EWP members Patrick Diehl and Juniper Allison refused to move again, they were arrested and charged with class A misdemeanors, their materials were confiscated, and they were forced to spend the rest of the holiday weekend in the Purgatory Correctional Facility. Perhaps one of the most surprising statements of support for Diehl and Allison came from Steve Gessig, a member of People for the USA, an organization formed to counter the EWP’s activities. In a May 29 Deseret News article, he said, “As long as the public access is not restricted, any individual has the right to voice their opinion.” Although on the opposite side of the grazing issue, Gessig has something at stake in how the BLM dealt with the EWP, since there may come a time when his organization decides to pass out information regarding the management of public lands. This incident was unusual in its quick resolution. By Friday, EWP members, including Diehl and Allison, and the American Civil Liberties Union of Utah were meeting with the BLM’s Utah director to address the unnecessary and – more significantly – the unconstitutional suppression of speech. That day, the BLM agreed that the EWP booth could remain near the visitor’s center, and, with the help of ACLU of Utah cooperating attorney Greg Saunders, criminal charges against Diehl and Allison were dismissed by the middle of June. Despite the fact that in the end, both the First Amendment and common sense prevailed, it’s difficult to view this incident as a victory – our free speech rights mean nothing if it takes a weekend in jail and a visit to the ACLU offices to exercise them. In the past year, activists have experienced a similar trampling of their free speech rights, although on a much larger scale. Beginning with the World Trade Organization’s meeting in Seattle last fall and ending most recently with the Democratic National Convention in Los Angeles, national and international events have provided political activists with unprecedented media opportunities to highlight their issues. Unfortunately, the response of city administrations and law enforcement to those exercising their free speech and assembly rights has been a depressing reminder of earlier times when the promises embodied in the First Amendment were deliberately ignored and excessive force was routinely used to break up demonstrations. Since Utah will have its own international event in 2002, it’s important to review the basic principles of free speech by examining what went wrong in Seattle and at this year’s political conventions. After all, those involved in the Olympic security effort have been receiving crowd control training at these events and civil libertarians should be no less prepared. The First Amendment and the Right to Protest The First Amendment seems straightforward in its protection of the elements necessary to carry out lawful protest: protesters are guaranteed that the government will not interfere with their freedom of speech and association, with their right to assemble and petition, nor with the media’s ability to cover their activities. However, it takes only a cursory knowledge of U.S. history to know that since the Bill of Rights was first drafted, there has been continuous debate and controversy over what expression is protected, as well as how, when, and where that expression can take place. Dissent and protest play a significant role in First Amendment law, since it is those individuals who choose to challenge the status quo who have helped define the admittedly murky boundaries of protected expression. The legal history of what speech is protected by the Constitution is fascinating, ever changing, and much too long to cover in a newsletter article (an excellent resource is the ACLU’s publication, The Right to Protest). Curiously, it also isn’t very relevant to what has occurred this past year, since rather than prosecuting protesters for the content of their expression, cities are now shutting down protests by dictating where and how speech can – or, more often, cannot – occur. In general, free speech activities are allowed in public forums, which include our streets, sidewalks, and parks, as well as other public properties that the government has voluntarily designated to be public forums. Of course, anyone who is following our case regarding the Main Street sale knows that it is not as easy to determine a property’s status as this simple definition implies. We argue, for example, that because of its unique history and ongoing use as a public thoroughfare, the block of Main Street between North and South Temple remains a public forum, while Salt Lake City claims that it is now private property. Other properties that appear to be public forums, such as sidewalks around sports arenas, may in fact have been sold to private agencies and as a result, are just as ambiguous as the now infamous Main Street block. In addition, there may be special restrictions regarding First Amendment activities on sidewalks outside areas such as public schools, courthouses, and post offices. Battles over what are and are not public forums are intense, because private properties and undesignated public properties do not carry with them First Amendment protections. While courts have been reluctant to allow restrictions in public forums, they have recognized the need to balance the First Amendment rights of protesters with public safety and order. Consequently, they’ve allowed what are called “time, place, and manner” restrictions, such as permit requirements for sound equipment or large rallies, or granting access to areas on a first-come-first-serve basis. These restrictions must be neutral with respect to the person or organization speaking as well as to the content of the speech, and they cannot unreasonably inhibit the ability to get one’s message across. Also, they must be narrowly tailored to address a very real public safety concern – as long as there is room for passersby and entrances to buildings are not obstructed, there should be no need for restrictions in our public forums. Free Speech in the Real World Unfortunately, as Diehl and Allison can attest, there are no assurances that our constitutional rights to free expression will be respected. This is especially true when cities choose to host large-scale events that bring with them a multitude of issues that often compete with one another. Cities must, for example, ensure that event participants are able to exercise their First Amendment right to assemble, while at the same time, accommodate lawful protests by individuals who wish to express opinions counter to those voiced at the planned event. Cities must also deal appropriately with those who practice nonviolent civil disobedience and who therefore expect and even wish to be arrested, and they must maintain public safety and order by arresting those engaged in illegal activities, such as vandalism or violent actions. In addition, cities must exercise suitable crowd control and management tactics, and ensure national security and prepare for the possibility of terrorist activities. There is no question that addressing these needs is a difficult job. However, freedom of expression is too often the first casualty in this precarious juggling act. SEATTLE AND THE WTO MINISTERIAL CONFERENCE In an excellent report entitled Out of Control: Seattle’s Flawed Response to Protests Against the World Trade Organization (available online at www.aclu-wa.org), the ACLU of Washington outlines what occurred when the WTO met last November 30 through December 3, and lists concrete recommendations to avoid similar situations in the future. Although specific to Seattle, the report contains useful information for any city planning to host a major event. The report persuasively maintains that it was the city’s failure to prepare for large-scale demonstrations that led to the subsequent chaos, and that in its efforts to regain control of the situation, the city unconstitutionally overreacted when it established and enforced a “no protest zone” in a large area of downtown Seattle. While the ACLU of Washington commends the city for its initial decision to keep downtown open to protesters so that they could get close enough to the meeting sites to be seen and heard, it chastises the administration for not protecting the constitutional rights of conference delegates to travel and peaceably assemble. Long before the WTO conference, it had been well publicized that organizers were expecting thousands of people to participate in political protests, and that some demonstrators were arriving with the intent of shutting down the conference through nonviolent actions. In light of the planned demonstrations, the city should have ensured the safe passage of meeting-goers by establishing narrow corridors or security perimeters clearly marked by barricades and fences, and reinforced by police officers trained in appropriate crowd control tactics. Such corridors, which would have had to have been in place well before the first day of the conference in order to be effective, would have served the specific purpose of allowing delegates to get to the meeting sites, and would have still allowed demonstrators to get their message out to the delegates. As it was, by the time the police arrived they could not stop the protesters from blocking access to the conference, thus leading to the cancellation of the WTO’s opening ceremonies. In response, the city declared a civil emergency and the next day, established its “no protest zone.” In enforcing the zone, police prevented anyone who sought to peacefully express anti-WTO sentiments from entering or remaining in an area of two-dozen square blocks located in the heart of downtown Seattle. In March, the ACLU of Washington filed a lawsuit on behalf of individuals who were either silenced or forced out of the zone solely because they had anti-WTO cartoons, buttons, stickers, signs, or in one instance, copies of the First Amendment. In the name of security – a premise that is difficult to support since law enforcement allowed thousands of shoppers, workers, and residents into the zone – the city created a forum that favored WTO sentiments and prohibited those of the protesters. Rather than following a well-thought-out crowd management strategy, law enforcement relied on tear gas, pepper spray, rubber bullets, and improper arrests and detentions to disperse what were predominately peaceful, albeit noisy, crowds. These were the images that Washington, D.C., which hosted the World Bank and International Monetary Fund meetings in April of this year, took to heart, and unlike Seattle, they made preparations for the large demonstrations that were expected. Regrettably, they did so by making it as difficult as possible for protesters who wished to exercise their constitutional rights of freedom of speech and assembly, and, while avoiding the chaos that occurred during the “Battle in Seattle,” police did arrest nearly 1,300 people. In a July lawsuit, the ACLU of the National Capital Area and other organizations argued that the United States and District of Columbia governments deliberately plotted to disrupt and stifle peaceful protests, by, among other things, unlawfully intimidating protesters, falsely portraying the protesters as threatening violence, wrongfully barring protesters from demonstrating near the meeting sites, and arresting hundreds of protesters without cause. PHILADELPHIA AND THE REPUBPLICAN NATIONAL CONVENTION Like Washington, D.C. (in fact too much like Washington, D.C.), the city of Philadelphia made sure it was fully prepared for the expected demonstrations prior to and during the Republican National Convention that took place in August. In an effort to run a “clean” event, Philadelphia granted the Republican National Committee an unprecedented Omnibus Special Events Permit, which essentially deeded over all of the venues traditionally used for protest activities to the Republican Party for its exclusive use during the 2000 convention. The permit also gave the Republicans the first right of refusal for any of the public forums included in the permit, and the political party had until July 1 to decide whether or not it would use a particular property. The Omnibus Special Events Permit was a fairly creative strategy to shut down large-scale demonstrations near the convention site, since, in the event that the Republican Party decided not to take advantage of a particular forum, any other group would have had less than a month to organize. The first group to discover and challenge these rules was Unity 2000, a coalition of more than 50 progressive organizations planning a march and rally on the evening preceding the convention. Their request for a permit, which was submitted in February, had been denied several times because the forum requested had been reserved for the Republicans’ use. After repeated negotiation attempts with the city failed, the ACLU of Pennsylvania filed a lawsuit on behalf of Unity 2000 and a second plaintiff, the Ad Hoc Coalition on Healthcare, maintaining that such a permit process was equivalent to the same type of viewpoint discrimination that resulted from the establishment of Seattle’s “no protest zone.” In their memorandum in support of their motion for preliminary injunctive relief, the ACLU of Pennsylvania convincingly argued that, “While the First Amendment clearly guarantees the right of the Republican Party to convene, the same amendment protects the right of those with competing views. Philadelphia cannot prefer Republican over dissenting speech, and cannot abrogate its responsibility to accommodate protesting speech by handing over the entire public space to one side of the political spectrum.” Shortly thereafter, the permits were granted. Significantly, Unity 2000 was also able to acquire city support for their event, such as a stage, sound equipment, emergency medical technicians, and trash removal, along with a host of other services for the demonstrators – surely a fair deal in light of the support that the city provided the Republican convention. Unfortunately, the ACLU of Pennsylvania’s work did not end there. Following the convention, the affiliate filed a lawsuit on behalf of members of the R2K medical collective, an organization formed to provide medical care to anyone who needed assistance during the protests. In the complaint, the ACLU of Pennsylvania argues that Philadelphia police officers improperly seized and searched individual plaintiffs as part of a campaign to harass the protesters’ support organization. In early September, newly publicized search warrants strengthened claims of police harassment and surveillance. The documents revealed that state police had infiltrated groups that were planning to protest during the convention, and that the justification for the seizure of a rented warehouse and the subsequent arrests of over 70 protesters was partly based upon fears that there were “communist and leftist” sponsors and that some of the protesters were sympathetic to “the former Soviet-allied World Federation of Trade Unions.” As Stefan Presser, the ACLU of Pennsylvania’s legal director, noted in an article in the New York Times, it was language that could have been written when J. Edgar Hoover ran the F.B.I. LOS ANGELES AND THE DEMOCRATIC NATIONAL CONVENTION Like the ACLU of Pennsylvania, the ACLU of Southern California had its work cut out for it long before the Democratic National Convention rolled into town. Since August 1999, the affiliate had repeatedly attempted to participate in the security planning process for the Democratic National Convention in order to create a plan that would include meaningful free speech areas for demonstrators. However, their offers were rejected, and in June of this year, they received the plan developed by the Los Angeles Police Department that unnecessarily and unconstitutionally prohibited groups from using a huge area of public property located around the Staples Center where the convention was to take place. As in Seattle, D.C., and later Philadelphia, Los Angeles sought to prevent protesters from communicating to their target audience – in this case, to convention delegates and public officials. And, once again, it took a lawsuit and a court order to guarantee the First Amendment rights of protesters. After a week of intensive negotiations and less than three weeks before the convention began, the ACLU of Southern California and the city of Los Angeles signed an agreement that allowed protesters to be within sight and earshot of their intended audience and that addressed the police department’s security concerns. The ACLU of Southern California was also successful in its efforts to stop the LAPD from harassing Democratic National Convention protesters at their organizing headquarters, the Convergence Center. After written warnings, the ACLU again had to go to court, which granted them a temporary restraining order only days before the convention was to begin. The order enjoined the LAPD from, “Seizing from the Convergence Center or destroying any puppets or printed material” and “entering the Convergence Center on the basis of purported administrative violations, including building and safety, zoning, and fire code violations, in the absence of a prior order issued by this court.” This was an excellent victory, since these tactics had been employed by both D.C. and Philadelphia law enforcement agencies, which characterized this sort of harassment and intimidation as necessary security measures. It seems that in Los Angeles, courts began to state strongly that cities can not rely on these unconstitutional strategies to prevent protesters from organizing and demonstrating. What Does Any of This Have to Do With Us? The 2002 Winter Olympic Games will offer advocates a rare opportunity to voice their messages in an international forum, and we can expect individuals and organizations to protest a wide-range of issues. There will be those who are critical of the Olympic sponsors, from anti-beer advocates who are concerned about the message that Budweiser’s sponsorship conveys, to anti-globalization messages aimed at international corporate sponsors. Some activists will be critical of the human rights records of participating countries, while others may express the more local concerns of the impact that possible Olympic debt will have on Utah’s taxpayers. Environmental activists may criticize the use of public lands or the controversial land deal that made it possible for Snow Basin to expand its facilities. And don’t forget that these Olympic events will take place while the Utah State Legislature is in session – local activists may find international media useful in their lobbying efforts. At the same time, the Olympics will create an unprecedented security presence from both the private and public sectors that will have the potential to compromise protected expression. The ACLU of Utah has been meeting with representatives from the Salt Lake City Police Department, the Salt Lake Organizing Committee, and the Utah Olympic Public Safety Command – in fact, with anyone who will listen to our concerns – to ensure that demonstrators have meaningful areas in which to voice their opinions, that our regular public forums remain open to free speech activities, and that police respond appropriately to those who choose to practice civil disobedience. When we agreed to host the winter Olympics, we welcomed the world to Salt Lake City, and unlike other city administrations, our preparations should not include strategies that are crafted to exclude voices of dissent. Protest cards, press releases, newspaper and newsletter articles, as well as lawsuits and court decisions are available on affiliate websites, and they offer a more complete picture than this article can provide. Check out the ACLU of Washington at www.aclu-wa.org, the ACLU of the National Capital Area at www.aclu-nca.org, the ACLU of Pennsylvania at www.aclupa.org, and the ACLU of Southern California at www.aclu-sc.org. In addition, the national ACLU has created a page specifically about protest activities at www.aclu.org/features/f072100a.html, and the informative book, The Right to Protest, can be purchased at the ACLU online store at www.aclu.org. _________________________ ACLU of Utah Opposes Ballot Initiative A "English as the Official Language of Utah" Stating that English is the sole language of government, Initiative A poses a severe threat to the constitutional rights of both government employees and of individuals who are not yet proficient in English. Like other English-only laws that have been passed throughout the country, the initiative restricts the ability of government agencies and officials to communicate and provide services in languages other than English, and consequently, it denies limited English speakers fair and equal access to their government. Also, the initiative poses a very real threat to the First Amendment rights of elected officials and government employees who, as a result of this law, may become fearful of communicating in languages other than English in the course of their work. Finally, those with limited English proficiency may very likely be denied their First Amendment rights to receive vital information and to petition the government for a redress of grievances. While Initiative A contains some exceptions to its ban on the use of languages other than English, it does not cover a host of situations in which translation and interpretation services make sense. These include vocational rehabilitation, job referrals, information about water and energy conservation, assistance in receiving child support, and information about how to file claims of employment or housing discrimination. Indeed, it is simply impossible to cover all of the conceivable circumstances in which the benefits of multilingual services outweigh the costs to our community. In addition, Initiative A is on shaky legal grounds, as courts have repeatedly stated that our constitutional rights do not depend upon our ability to speak English. In 1999, the United States Supreme Court upheld the Arizona Supreme Court’s decision that Arizona’s English-only measure was unconstitutional because if passed, it would have deprived people with little or no English from gaining access to information about government “when multilingual access may be available and may be necessary to ensure fair and effective delivery of governmental services to non-English-speaking persons.” Recently, the Alaska Civil Liberties Union and other organizations successfully blocked a 1998 state initiative that contains language similar to that in Initiative A, and the law is now on hold until their legal challenge is resolved. The failure to provide services in languages other than English has also led to legal liability, since language discrimination is the functional equivalent of national origin discrimination, and is therefore prohibited by our federal civil rights laws. The constitutional implications of Initiative A are significant, but they are not the entire story. The initiative is based on disturbing and incorrect assumptions about immigrants and American Indians, and it forces us to ask ourselves what sort of a community we want to create. In 1999, the Utah State Legislature rejected this same initiative, and in November, we should do the same because it is divisive, unnecessary, and unconstitutional. Click here for more information about the ACLU’s position on English-only laws. _________________________ ACLU of Utah Supports Ballot Initiative B "Utah Property Protection Act" If passed, Initiative B would institute much-needed reforms to Utah’s civil asset forfeiture laws and establish important due process protections for property owners. Currently, these laws, which became popular tools in the unsuccessful war against drugs, allow law enforcement to seize a person’s property without having to prove that that person committed a crime or even that the property was involved in an offense. In fact, a civil forfeiture action can, and often does, go forward without a criminal conviction, and the owner of the property does not necessarily need to be the same person who was using it when it was seized. Because the proceeding is a civil matter, the person is not provided with the constitutional protections available to criminal defendants, such as the right to notice, a hearing, or an attorney. Nationally, there have been too many instances in which individuals have been the victims of an overzealous use of our civil forfeiture laws (for a good list, see www.aclu.org). If a person is carrying a large amount of cash, for example, it is assumed to be drug money and is therefore subject to forfeiture. In other cases, people lose their homes because, unbeknownst to them, their child, a visitor, or a renter is charged with drug dealing. Under civil asset forfeiture laws, the fundamental principle “innocent until proven guilty” is turned on its head, and property owners must hire an attorney to get their property back – even if they are never convicted of a crime. In contrast, those convicted under criminal statutes are afforded full constitutional and procedural protections. Initiative B protects innocent property owners by prohibiting forfeiture unless the government proves that the owner actually committed or consented to the crime. It also provides property owners with an attorney if they are unable to afford one. And, while the court decides whether the property should be forfeited, the initiative allows people to keep their property if its loss creates an undue hardship and is necessary for such activities as running a family business, caring for children, or housing an elderly or disabled relative. In addition, the initiative requires law enforcement agencies to track and audit forfeited property: for the first time, Utahns will know exactly where forfeited assets and cash are coming from and how proceeds are being spent. Importantly, Initiative B does away with any incentive to abuse the forfeiture process by prohibiting law enforcement from keeping cash or money made from the sale of forfeited property. Reform of our asset forfeiture laws is not unheard of, and this year, Congress passed the Civil Asset Forfeiture Reform Act. Sponsored by Representative Henry Hyde and supported by both Utah Senator Orrin Hatch and the American Civil Liberties Union, it placed new restrictions on the federal government’s ability to forfeit private property. It’s time that we do the same for our state laws by passing Initiative B. Return to top of page

ACLU OF UTAH UNION OR FOUNDATION? | USER AGREEMENT | PRIVACY POLICY | CONTACT US © 2008 ACLU OF UTAH · 355 NORTH 300 WEST · SALT LAKE CITY, UT 84103 · T (801) 521-9862 · F (801) 532-2850