Our Right to Protest

Demonstrations large and small have been met with disproportionate police presence over the last several years. Peaceful protestors have faced aggressive, jackbooted riot police armed with semi-automatic rifles, tear gas, rubber bullets and sonic cannons. Organizers of demonstrations have been harassed and even preemptively arrested before major events like the Democratic and Republican Conventions in 2008, and the G20 Summit in Pittsburgh in 2009. Organizers have also faced propaganda efforts that have attempted to demonize the protestors, which have effectively reduced turnout, while some cities have established "free speech zones" which serve to reduce turnout and visibility of protests. Meanwhile, the Animal Enterprise Terrorism Act (AETA) criminalizes basic protest tactics like picketing, boycotts and educating the public -- all activities that are protected by the First Amendment.

On the other side of the political spectrum, smaller protests have been targeted by laws that seek to keep protestors away from their targets: abortion clinics in some cases, military funerals in others.

Government Tactics to Limit or Stop Protests:
- Animal Enterprise Terrorism Act
- Anti-Protest Laws, Buffer zones and other restrictions on protest activity
- Disproportionate Police Response to Peaceful Protests
- SLAPPs, RICO and other curious ways to quash protest
- Surprise Quiz!

Model Legislation & Best Practices
- Model Legislation
- U.N. High Commissioner for Human Rights Best Practices

But we keep on protesting!
- Reports from protests large and small
- Updates on lawsuits stemming from protests

Animal Enterprise Terrorism Act

The Animal Enterprise Terrorism Act (S. 3880) was introduced at the behest of the pharmaceutical and biomedical industries in early 2006.

AETA denies equal protection to social justice activists and restricts our freedom of speech and assembly. It unfairly brands as terrorism any activities that cross a state line and interfere with the operation of an animal enterprise or of any entity that deals with one. Such activities may include website posts, peaceful vigils, nonviolent civil disobedience, undercover investigations, and whistle-blowing.

AETA is excessively broad and vague by covering nearly all enterprises and by implicating individuals who merely attempt or discuss "interference" with their operation. It imposes excessively harsh penalties when compared with other similar federal offenses. It has a chilling effect on social justice advocacy. It deters investigation of federal law violations committed by animal enterprises. It detracts from prosecution of real terrorism against the American people.

 

Blum v. Holder
The Center for Constitutional Rights has filed a lawsuit on behalf of five animal rights activists challenging the constitutionality of the Animal Enterprise Terrorism Act (AETA), arguing that the law is too broad, too vague and singles out animal rights activists based on their political beliefs. The five plaintiffs are longtime activists whose advocacy work has been chilled due to fear of being prosecuted as terrorists under the AETA. Read more here.

AETA 4
In July, 2010, a judge dismissed an indictment against four animal rights activists who were charged with conspiracy to commit animal enterprise terrorism because the indictment didn't include any details about specific activities that the government considered terrorism. Lawyers for the activists say that's because a detailed indictment would have shown that the "terrorist" activities were actually standard political protest actions clearly protected by the First Amendment such as picketing, chanting, leafleting and leaving chalk drawings on the sidewalk.

"This decision is a huge victory for people everywhere who care about the First Amendment. When our government seeks to punish speech and protests as a crime, it cannot avoid First Amendment scrutiny by failing to provide details about what that defendant is alleged to have said or done," said Rachel Meeropol, staff attorney at the Center for Constitutional Rights and a member of the activists's defense team (and I know that name will ring a bell for many readers, she is daughter of Robert Meeropol and granddaughter to the Rosenbergs). The case is an important test of the Animal Enterprise Terrorism Act (AETA), a terrible law that defines many clearly First Amendment activities as "terrorism". Click for more info on this case.

 

Disproportionate Force

Occupy Wall Street

September 27, 2012: $1 Million Award in UC-Davis Pepper Spray Incident
The University of California Regents have agreed to pay out about $1 million to settle the lawsuit brought by 21 students who were pepper sprayed during a peaceful protest on campus last fall. Each of the 21 protesters will get about $30,000 and a written apology from the school's Chancellor. The judge has granted class action status to other students at the protest not named in the lawsuit who may have been affected -- the agreement sets aside $100,000 to compensate them.

July 25, 2012: Press Release: Legal Experts File Complaints about Widespread Rights Violations in Policing of ‘Occupy’ Movement; Call on NYC, U.S. Justice Department, UN to Protect Protestors’ Rights
The City of New York must take immediate action to correct the clear pattern of abusive policing of Occupy Wall Street protests, said legal experts in a complaint filed today with New York City authorities, the U.S. Department of Justice, and the United Nations. The complaint is based on a report providing in-depth documentation and legal analysis of widespread human rights violations in New York City’s treatment of Occupy protests over the past ten months.

“Recently, officers repeatedly yanked the broken collarbone of a protester as he begged them to stop hurting him. And just two weeks ago, a phalanx of officers removed a grandmother from a park for the ‘crime’ of knitting in a folding chair, arrested a man trying to help her leave, and then arrested another man filming the incident,” said Professor Sarah Knuckey, one of the report’s principal authors, who also witnessed these incidents. “These are just two of hundreds of examples we document in our report, demonstrating a pattern of abusive and unaccountable protest policing by the NYPD.”

This report is the first in a series by the Protest and Assembly Rights Project, a national consortium of law school clinics addressing the United States response to Occupy Wall Street.

In their 132-page report—Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street—the experts catalog 130 specific alleged incidents of excessive police force, and hundreds of additional violations, including unjustified arrests, abuse of journalists, unlawful closure of sidewalks and parks to protesters, and pervasive surveillance of peaceful activists. Yet, to date, only one police officer is known to have been disciplined for misconduct in the context of Occupy Wall Street policing.

“The excessive and unpredictable policing of Occupy Wall Street is one more example of the dire need for widespread reform of NYPD practices. These violations are occurring against a backdrop of police infiltration of activist groups, massive stop-and-frisk activity in communities of color, and the surveillance of Muslims,” said Emi MacLean, a human rights lawyer and primary author of the report. “This report is a call to action.”

The report calls for urgent state action, including:
• The creation of an independent Inspector General for the NYPD; • A full and impartial review of the city’s response to OWS;
• Investigations and prosecutions of responsible officers; and
• The creation of new NYPD protest policing guidelines to protect against rights violations.

If New York authorities fail to respond, the report calls for federal intervention.

“The U.S. response to the Occupy movement – which itself emerged as part of a wave of global social justice protests—is being closely watched by other governments,” said Professor Katherine Glenn, one of the report’s principal authors. “In the face of this international attention, this report shows that New York City’s response actually violates international law and, as such, sets a bad example to the rest of the world. The city now has an opportunity to set this right through reforms that reflect just and accountable policing practices.”

This report is the first in a series by the Protest and Assembly Rights Project. This report focuses on New
York City, and was authored by the Global Justice Clinic (NYU School of Law) and the Walter Leitner
International Human Rights Clinic (Fordham Law School). Subsequent reports will address the responses
in Boston, Charlotte, Oakland, and San Francisco. Participating law clinics are at NYU, Fordham, Harvard,
Stanford, Rutgers-Newark, Charlotte, and Loyola-New Orleans.
The report is available here or at: http://www.chrgj.org/projects/suppressingprotest.pdf

November 21, 2011: Stop Police Use of "less than lethal" weapons against protesters
Peaceful protesters, sitting on a sidewalk at UC Davis were doused with pepper spray at point blank range; in Seattle, police pepper spray a peaceful, 84 year-old woman; in Oakland, an Iraq war veteran is critcally injured by a projectile launched by police. In too many cities across the country, police are responding to protesters with disproportionate force. Sign and share the petition to put an end to unjustified use of dangerous weapons.

October 27, 2011: Defending Dissent Foundation Condemns Excessive Police Force
Washington, DC | www.defendingdissent.org |, October 27, 2011-- On Tuesday evening, police in Oakland, California, armed with lethal and “non-lethal” weapons, dressed in riot gear, protected by helmets, shields and bullet proof vests responded to unarmed protesters with excessive force, resulting in the critical injury of one protester, Scott Olsen. See the video here and here.

The Defending Dissent Foundation condemns the use of excessive force and calls on police departments across the country to immediately pledge to stop using “non-lethal” weapons including rubber bullets, bean bags, tear gas, baton rounds or concussive (“flash bang”) grenades against unarmed protesters. DDF Executive Director, Sue Udry said “There is no justification for employing these weapons against unarmed protesters. Use of these weapons can seriously injure protesters, and make a volatile situation more dangerous for both protesters and police. Our police are sworn to uphold the Constitution, we urge police to respect that pledge, and to respect the rights and well-being of protesters.”

We welcome your omments on the DDF Facebook page

Press Release is here.

Enjoy Jon Stewart's take on the Oakland Police overreaction:

October 13, 2011: Mayor Bloomberg Threatens to "Clean-up" OWS Protest
The Occupy Wall Street (OWS) movement proves that dissent is alive and well in the U.S. With protests in cities and towns all over the country, the movement is also giving us a pretty good picture of where freedom rings in the U.S. .... and where officials are trying to snuff it out.

See the alert here.
See the press release here

Model Legislation & Best Practices

March 27, 2013: U.N. High Commissioner Takes Our Advice
The United Nations High Commissioner for Human Rights recently released a report on ensuring the right to peacefully protest.

Entitled Effective measures and best practices to ensure the promotion and protection of human rights in the context of peaceful protests, the report cites recommendations from the world’s leading free speech organizations, including Defending Dissent Foundation.

The report comes to a conclusion that we could have written:

Peaceful protests are a fundamental aspect of a vibrant democracy. States should recognize the positive role of peaceful protests as a means to strengthen human rights and democracy. They should guarantee the rights to freedom of peaceful assembly, freedom of association and freedom of opinion and expression, which are essential components of democracy and indispensable to the full enjoyment of all human rights.

The report specifically cited DDF’s recommendations that permits or notice should not be required for assemblies of less than 50 people, or sidewalk marches or for immediate or spontaneous demonstrations in response to public events. Furthermore, the report cited our recommendations regarding police conduct during protests, including the requirement that police wear clear identification and are prohibited from infiltrating the protest as undercover agents or informants, or from taking pictures or videos of protesters, making pre-emptive arrests, or from using horses, riot gear and non-lethal weapons.

The full report is available here. Defending Dissent Foundation is cited in points 46 and 53.

We were disappointed however, that the report omitted several key recommendations regarding police activity prior to a protest, including that government agents should not infiltrate or spy on civic organizations planning protests without clear and articulable indication of criminal activity; government agents should not act as agents provocateur, and government agents should not engage in propaganda to vilify protesters. Read our entire set of recommendations here.

Reports from protests

Smaller protests around the country:
Summer, 2012: UndocuBus
This summer, a bus of undocumented activists has traveled through the deep south to bring attention to the plight of undocumented immigrants on a ride for justice called “No papers, No fear.” The goal was to confront power with the stories, voices, and actions of those directly affected by these immigration policies. The stakes for these activists are particularly high, as they face checkpoints, profiling and ultimately, deportation for their actions.

The tour begin with a civil disobedience action in Phoenix against Sheriff Joe Arpaio, where they were arrested and immediately turned over to ICE. They were all released although at least one man was held for three days and is now facing possible deportation. But he stayed on the bus as it rolled through the south staging protests, civil disobedience and in general raising a little (non-violent) hell. The tour is educating the public and pressuring lawmakers, and it is empowering not only those on the bus, but others in the immigrant community.

When the bus arrived in Charlotte, 10 of the activists were arrested for blocking an intersection during the DNC. Again, they were turned over to ICE, but immediately released. According to Tania Unzueta, a spokesperson for the group, that’s because of solidarity; “There’s something about public pressure. ICE officials told us that this was a high-profile case, and to me, that means that when people have community behind them, they really are treated differently than other people are.”

July 29, 2012: Burlington,Vermont
On July 29, environmental activists gathered in Burlington Vermont outside an international conference of politicians from New England and Canada. Hours of peaceful protest ended with police firing pepper balls on protesters at close-range to clear the streets. No arrests were made, and no one was seriously injured, but the disproportionate response was unjustified.

A few days before the protest, the FBI paid a visit to the home of one of the organizers to question him about the upcoming protests. “I think it really highlights the lack of transparency and tolerance for dissent that surrounds conferences such as these… That we, as organizers expected police investigation underscores how participation is discouraged,” commented one organizer.

July, 2012: West Virginia
Mountain-top removal protests drew angry counter demonstrators who physically threatened protesters, but police turned a blind eye. Instead they arrested a journalist for taking pictures, and 20 demonstrators for trespassing in a civil disobedience action. Arrests were expected, but bail has been set at an unconstitutionally high $25,000.

August 9, 2010: Protest at the Pentagon
(Do We Live in a Representative Democracy or a Police State? False Arrests at the Pentagon - blog post by Joy First)

April 2010: Photographer arrested taking pictures of NYC protest

July 2009: Anti-war t-shirts not allowed at West Point games

May 2012 NATO Summit (Chicago, IL)
Campaign to Disrupt and Discredit
The attempt to stifle the voices of dissent started months before the May 20-21 NATO summit. Federal and local officials aggressively raised alarms about the people planning to travel to Chicago to protest NATO.

Five Activists Charged with Terrorism
Just days before the NATO summit, Chicago police preemptively arrested several activists, charging them with terror-related crimes.

Mostly Peaceful Protesters... Lots of Riot Police
When it finally came time to take to the streets and protest, there were no incidents of rocks being thrown at windows or human waste being thrown at police. As Kevin Gosztola reported on Firedoglake.com, “instead of experiencing chaos created by protesters, the city experienced a looming police state that took over the city for a few days.”

September 2009 G20 Economic Summit (Pittsburg, PA)
September 2009: What a welcome!
A report on the G20 summit protests in Pittsburg
-- Follow up: More on the G-20 protests
-- Follow up: Criminal Twittering at the G-20 protests?

September 2008: Republican National Convention (St. Paul, MN)
Surveillance before the convention: in Iowa
Report on the convention - excessive force against peaceful protestors, mass arrests, tear gas....
Who are these protestors, really?
A closer look at those dangerous RNC protestors

 

Update on lawsuits filed by or against protestors

February 9, 2012: Chicago Agrees to Pay $6.2 Million to Protesters
Awards of as much as $15,000 each for over 700 plaintiffs trapped and arrested without dispersal warning. Read more...

September, 2011: $$ Awards in Two RNC Lawsuits
RNC activists are still winning cases stemming from law enforcement raids during the Republican Convention in 2008. Earlier this summer, the ACLU of Minneapolis announced that three plaintiffs won $50,000 for politically motivated raids on their home. In another case, six plaintiffs who charged that local law enforcement had unlawfully seized vast amounts of constitutionally protected literature during the execution of search warrants in the days leading up to the 2008 RNC, won a $27,000 settlement .

Celia Kutz, one of the six plaintiffs, stated "We took on this case because we knew that the police raids, mass arrests and indiscriminate collecting of information was a violation of our rights. In this case Ramsey County used fear, by the way of raids and false accusations, as a tactic to intimidate people speaking up for justice. We chose to not be intimidated and want this to serve as a reminder to Ramsey County Sheriff's Office and other law enforcement agencies that there is a cost to illegally suppressing political organizing."

The activists intend to donate their litigation proceeds to local organizations that support infrastructure and capacity for social justice movement building.

September 2008: Republican National Convention Lawsuit Updates, visit www.RNC8.org

August 2009: Civil Rights protestors pardoned
Better late than never? Birmingham mayor pardons 1960's protestors.

March 2009: Los Angeles Agrees to Pay Almost $13 million
The City Council of Los Angeles agreed to pay out $12,850,000 to activists injured during a May Day rally in 2007.

 

Anti-Protest Laws, Buffer zones and other restrictions on protest activity

March 22, 2012: Anti-Protest Laws Spring Up All Over
Georgia: The Georgia General Assembly is considering a law (SB 469) that would increase penalties and severely restrict peaceful, non-violent protests and make civil disobedience a felony. The sponsor says the law is aimed at Unions (which of course is unconstituional prohibition of speech based on content), but the law is written broadly and is opposed not only by the Georgia AFL-CIO, but the Atlanta Tea Party. The bill has passed the Senate and is due for a vote in the House soon.

D.C.: The D.C. City Council is considering a broad anti-protest law that expands the areas where no protests are allowed that would block passers by to include parks, sidewalks or in or outside public buildings and include fines of up to $500 and 90 days in jail, an protesters could be prohibited from returning to the site of such a protest for an unspecified length of time.

Chicago: In response to planned protests around the NATO summit in May, the city of Chicago revised rules for protests, requiring organizers to purchase $1 million insurance policies, register each sign or other "attention-getting divice" that requires two people to carry it.

Charlotte: The Democratic National Convention will be held in Charlotte in September, so the City Council got to work and passed an ordinance aimed at the protesters who are sure to gather, and at the Occupy protesters already in town. The new law bans camping on city property and prohibits glass bottles, sparklers, police scanners, scarves, backpacks, duffel bags and coolers within the boundaries of an “extraordinary event,” and criminalizing the use as a “projectile” of “animal parts or fluids, manure, urine, feces or other organic waste by-products.”

For more on state and local laws passed in response to Occupy read our blog.

March 1, 2012: HR347 passes House, sent to President
Upon passage of the bill, warnings rang out across the internet causing a bit of a panic. We were warned that a new law “would make it a felony—a serious criminal offense punishable by lengthy terms of incarceration—to participate in many forms of protest associated with the Occupy Wall Street protests of last year.” And that the bill “will make protest illegal.” Representative Justin Amash (R-MI) called it a dangerous bill in posts on his Facebook page and claimed it would ban protests that disrupt government activity. Read more....

August 11, 2011: Shame on BART!
On August 11, the Bay Area Rapid Transit System (BART) cut off cell phone service in order to prevent a protest. That's bad enough, but then officials took to the airwaves to demonize the protesters by claiming the protests could have turned violent. The irony is that the protests were all about BART police violence: the killing of an unarmed passenger on July 3. BART's tactic was a temporary success, and the protests failed to materialize on the 11th, but since that date, protestors have organized successful weekly protests at BART stations. The transit system has come under a storm of criticism, and the Federal Communications Commission is investigating the shutdown of cell service. Read more here (Huffington Post)...

August 2010: Westboro Baptist
A US District Court judge ruled that two Missouri laws restricting protests near funerals are unconstitutional. The laws were passed in 2006 after funeral protests by the Westboro Baptist Church and banned protests within 300 feet of a funeral location, and within one hour before and after a funeral. As a reminder, these are the offensive anti-gay protests staged outside military funerals. Church members promote the idea that God is punishing America for tolerating homosexuality by killing U.S. soldiers. Clearly idiotic, but also clearly protected by the First Amendment. The Missouri Attorney General plans to appeal the ruling.

Follow-up: in our April letter we reported that the Supreme Court has agreed to hear another case, Snyder v. Phelps, involving the church's funeral protests. The case is popular with politicians: the Attorneys General of 48 states have filed an amicus brief in support of the state's right to limit protests (referred to as "psychological terrorism" in the brief), as have forty-two members of the Senate.

July 2009: Massachusetts court upholds buffer zones at clinics

SLAPPS, RICO and other curious ways to quash protest

Parents Beware
A group of Iowans have been visiting their Senators' offices each week over the last several months to deliver anti-war petitions. In early April, two of the activists, Christine Gaunt, 53, and Frankie Hughes, 12, decided to stage a sit-in in Senator Harkin's office. They refused to leave when the office closed, and were duly arrested. Pretty typical story so far, right? Until the next day when police charged Frankie's mom with contributing to the delinquency of a minor for refusing to make her daughter leave the protest. Des Moines Police Sgt. David Murillo told the Des Moines Register: "I understand and fully appreciate a person's constitutional right to free speech. However, this was a case of bringing a child into a criminal arena."

Response from the activist community (including DDF) was swift and vocal. Police dropped the charges against Frankie's mom. (May 2010)

SLAPP (Strategic Lawsuit Against Public Participation)
It was a clever stunt: a group of activists called Yes Men staged a mock press conference pretending they were representatives of the Chamber of Commerce, announcing that the Chamber would end its opposition to strong climate change legislation. Although it was quickly revealed as a hoax, the Chamber was not amused. They demanded that footage of the 'press conference' be taken from the group's website because it displayed the Chamber's trademark, and they have SLAPPed (Strategic Lawsuit Against Public Participation) the Yes Men with a merit less lawsuit claiming trademark infringement. The Electronic Frontier Foundation and Davis Wright Tremain, LLP, representing the activists, have filed a motion to dismiss, arguing that the Chamber's suit was designed to punish core political speech, rather than to vindicate any actual trademark harm. "U.S. courts have long recognized that trademark rights do not include the right to control language and silence critics," said EFF Senior Staff Attorney Corynne McSherry, "This political parody was clearly protected by fair use and the First Amendment."

Take Action!
We've covered the issue of SLAPPs before, and now I'm happy to report that we have an action step you can take to fight SLAPPS: Representative. Steve Cohen (D-TN) has introduced the Citizen Participation Act of 2009 (HR 4364).

Click here to send an email to your Rep
Or
Call and ask your Representative to co-sponsor HR 4364. Reach your Representative via the Capitol Hill Switchboard: 202-224-3121

Talking points:
- SLAPPs (Strategic Lawsuits Against Public Participation) are a pernicious threat to the constitutional rights of petition and free speech. Such lawsuits, brought not to vindicate legal rights but to harass, intimidate and silence those that engage in petition or expression on matters of public interest must not be allowed to interfere with First Amendment rights.

- There is only limited protection for federal claims in federal court against SLAPPs, and many states lack any SLAPP protection at all. I urge you to co-sponsor HR 4364, the Citizen Participation in Government and Society Act of 2009.

- Representatives who are interested in co-sponsoring should contact David Greengrass in Rep. Steve Cohen's office at 202-225-3264.

ACTIVISTS : RICO Strikes Again
Environmental activists in Indiana dreamed up a clever civil disobedience action to protest the building of a superhighway: they 'evicted' the company building the highway from their project office by removing the furniture and staging a sit in. The activists also staged sit-ins in trees, and blocked the entrance in front of one construction site. Two of the activists, Hugh Ferrell and Gina Wertz, have been arrested and charged under RICO. The charges were drafted in a way that turned these misdemeanors into felony racketeering, with charges of conspiracy and theft; by sitting in trees they deprived the owners of the value of the tree. The charges carry a maximum sentence of eight years. Read More…

QUIZ: Protests are "Low Level Terrorism"

The question, "Which of the following is an example of low-level terrorism activity?" and your choices are:
o Attacking the Pentagon
o IEDs
o Hate crimes against racial groups
o Protests

Read more…

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