The Assault on Free Speech, Public Assembly, and Dissent

“Not since President Nixon unleashed his Watergate henchmen and encouraged local police to suppress dissenters has there been such a systematic or widespread attack on basic free speech rights. Then, as now, it would be a costly mistake to simply rely on the courts. This book is a timely, vital resource for the kind of education and activism across political lines that in the past has most effectively protected basic American freedoms.”

DAVID KAIRYS, LAW PROFESSOR, HISTORIAN OF SPEECH RIGHTS,
EDITOR OF “THE POLITICS OF LAW”

“This report should be required reading for police officials as well as concerned citizens. It documents that we have forgotten the important lessons learned in the sixties about policing demonstrations in a democracy and too often ignored the duty to remain impartial -- an essential component of effective law enforcement.”

LOU REITER, POLICE CONSULTANT AND FORMER DEPUTY CHIEF,
LOS ANGELES POLICE DEPARTMENT

“Countless stories of impeded or punished dissent have emerged over the past few years. This report importantly considers these stories together and, in doing so, reveals a disturbing pattern of official encroachment on people’s First Amendment rights.”

CHISUN LEE, THE VILLAGE VOICE

“This report lays out a blueprint for federal, local and state police agencies when handling mass demonstrations in an effort to preserve the constitutional rights of people in a free society.”

RONALD HAMPTON, EXECUTIVE DIRECTOR,
NATIONAL BLACK POLICE ASSOCIATION

FOREWORD

by Lewis Lapham

The spirit of liberty is the spirit that is not too sure that it is right.

Judge Learned Hand

The facts assembled in the following pages attest to the pathology of a government so frightened of its own citizens that it classifies them as probable enemies. Mustering evidence from witnesses everywhere in the country (from trial judges in Oakland and Philadelphia as well as from First Amendment lawyers in New York, Portland, Boston, Washington and Miami) the report cites a long list of recent incidents in which various law enforcement agencies (federal, state, municipal) have deployed one or another of the increasingly sophisticated methods of intimidation (checkpoints, rush tactics, pop-up lines, containment pens, mass and false arrests, etc.) meant to negate the freedoms of speech and silence the voices of dissent.

To read the testimony is to know that the American democracy is in serious trouble. Not because the country lacks for a successful economy or a splendid military equipage, but because the wisdoms in office find the practice of democratic self-government vulgar and unsafe. Too loud, too uncivil and disrespectful, too many people in the room who don’t belong to a health club or the Council on Foreign Relations, not enough marble in the ceilings and the walls. The corporate and political gentry disapprove of the company and deplore the noise; whether seated in the Senate, installed in a television studio, charged with the management of an insurance company or a police precinct, they don’t like to be reminded that democracy is by definition a work in progress, a never-ending argument between the inertia of things-as-they-are and the energy inherent in the hope of things-as-they-might-become.

The country was founded by people unafraid to engage the argument, which, if it was to mean anything, required honest and sharply pointed speech, often dangerous, nearly always fierce. Protestant dissenters who arrived on the shores of Massachusetts Bay with little else except a cargo of contraband words, they possessed what they believed to be truthful refutations of the lies told by the lords temporal and spiritual in Europe, and they settled the New England wilderness as an act of intellectual opposition framed on the premise of what they called, “the quarrel with Providence.” Transferred in the 18th century from the choir lofts of religious feeling to the hustings of secular politics, the quarrel resulted in the Declaration of Independence and a Constitution predicated on James Madison’s notion that whereas “in Europe charters of liberty have been granted by power,” America has set the example of “charters of power granted by liberty.” The government established in Philadelphia in 1787 sought to ally itself with the shifts of changing circumstance, with the continuing discovery of new or better evidence, with the ceaseless making and remaking not only of fortunes and matinee idols but also of the laws.

Because the dissenting spirit stands with the party of things-as-theymight- become, in time of war it attracts the attention of the police. The parade marshals regard any breaking through the rope-lines of consensus as unpatriotic and disloyal; the unlicensed forms of speech come to be confused with treason and registered as crimes. Seeking to calm their own nerves by instilling the habits of obedience, the authorities do the country the disservice that Teddy Roosevelt had in mind in 1918 when he disagreed with President Wilson’s theory of World War One: “To announce that there must be no criticism of the President, or that we are to stand by the President right or wrong, is not only unpatriotic and servile, but it is morally treasonable to the American public.”

So it was, and so it is. The American democracy depends less on the size of its armies than on the capacity of its individual citizens to rely on the strength of their own thought. We can’t know what we’re about, or whether we’re telling ourselves too many lies, unless we can see and hear one another think out loud. To the extent that a democratic society gives it citizens the chance to speak in their own voices and listens to what they have to say, it gives itself the chance not only of discovering its multiple glories and triumphs but also of surviving its multiple follies and crimes. Dissent is what rescues democracy from a quiet death behind closed doors.

President Bush on campaign for reelection likes to tell his audiences that, as Americans, “we refuse to live in fear,” and of all the tales told by the government’s faith healers and gun salesmen, I know of none so cowardly. Where else does the Bush administration ask the people to live except in fear? On what other grounds does it justify its destruction of the nation’s civil liberties? Why else does the FBI search large scale street demonstrations for “anarchists” and “extremist elements,” place under surveillance citizens known to have read the works of Leon Trotsky or the Rubbiyat of Omar Khayyam?

Ever since the September 11 attacks on New York and Washington, no week has passed in which the government has failed to issue warnings of a sequel. Sometimes it’s the director of the FBI, sometimes the attorney general or an unnamed source in the CIA or the Department of Homeland Security, but always it’s the same message—suspect your neighbor and watch the sky, buy duct tape, avoid the Washington Monument, hide the children. Let too many freedoms wander around loose in the streets, and who knows when somebody will turn up with a bread knife or a bomb? Let too many citizens begin to ask impertinent questions about the shambles of the federal budget or the ill-conceived occupation of Iraq, and the government sends another law-enforcement officer to a microphone with another story about a missing nuclear bomb or a newly discovered nerve gas, another Arab seen driving a suspicious truck north to New Jersey or west to Oklahoma.

Notwithstanding its habitual incompetence, the government doesn’t lightly relinquish the spoils of power seized under the pretexts of apocalypse. What the government grasps, the government seeks to keep and hold, and the National Lawyers Guild performs a necessary service by publishing its report on the American government’s attempt to preserve the American democracy by destroying it. The deal is as shabby as the one offered to the luckless villagers of Vietnam. For the sake of a vindictive policeman’s dream of a tranquil suburb, the country stands to lose the constitutional right to its own name.

Lewis Lapham

Copyright © 2004 National Lawyers Guild