The Reaction to Convention Militarization
posted by Timothy Zick
Brian Leiter wonders why more legal bloggers, especially those of a libertarian persuasion, have not commented on the happenings outside the political conventions. In particular, Leiter highlights the arrest of Amy Goodman and other journalists. This silence is in stark contrast to the abundance of commentary regarding what transpired within the convention halls. To be fair to the blawgosphere, there has been some limited commentary on these matters. But not, as Leiter correctly notes, nearly as much as one might expect given the serious nature of the First Amendment contests that occurred outside both conventions.
As in 2004, the 2008 convention protesters confronted what I refer to in my book as the “militarization” of public space. At these critical democratic moments, officials again engaged in pre-event surveillance (overt and covert), “preemptive” raids, designation of national conventions as “National Special Security Events” (among other things, this places the Secret Service in charge of convention security), substantial shows — and in some cases uses — of force, mass arrests, and spatial restrictions on protest activity. Militarization at political conventions has historical roots in the 1960s; but it has become a unique form of repression since September 11, 2001. We shall see how the mass arrests are resolved in the courts. As for the physical restrictions on expressive activity, courts in Denver and St. Paul upheld limits on the location of protest activity as content-neutral time, place, and manner regulations. In both cases, the courts made a point of observing that the restrictions in 2008 were not as bad as those imposed on protesters in 2004 — in particular the protest cage erected in Boston. That is, of course, an extraordinarily low bar.
I plan to compare the conventions of 2004 and 2008 in terms of the exercise of First Amendment liberties in a subsequent post. I want here, however, to respond to Brian Leiter’s comment regarding the paucity of commentary on some of the “police state” tactics in Denver and St. Paul.
It may simply be the case that many people — members of the general public, public officials, and academic libertarians — have come to view militarization as invevitable and in some sense justified. Perhaps many have simply accepted the government’s claim that in order to preserve “security” for the general public at mass events like political conventions, protest activities must be curtailed (sometimes substantially so). One cannot, of course, completely discount the possibility of violence or terrorism at such events. Thus, officials must prepare for the worst case. Insofar as seemingly innocent persons like Amy Goodman are swept into the broad security net, this may be viewed by some as “collateral damage.” It is unfortunate, to be sure, but in the eyes of many probably not malicious or abusive under the circumstances (at worst, a few bad apples . . . ). So long as no attack or other violence occurs, officials in this context, as in others, seem to receive substantial credit from the public for “keeping us safe.” This is, on a much smaller scale, something like crediting the Bush Administration for keeping the general public safe from terrorist attacks — again, irrespective of the loss of liberty for some persons. In sum, it may be the case that many simply believe that the government has properly balanced liberty and security in this context.
But there is a less rational and, I fear, equally plausible reason that many people are not especially bothered or exercised by the events in Denver and St. Paul. There is a palpable sense, at least from the comments the public has posted in response to certain news accounts and videos, that the protesters essentially got what they “deserved.” Many may believe that these “troublemakers,” some small number of whom are self-professed “anarchists,” should not be publicly dissenting and trying to disrupt political conventions in the first place. Public protest, on this view, is a socially and politically useless exercise. More than this, some may well view it as “unpatriotic.” I don’t know, of course, whether it is fair to go so far as to say that the (mostly) silent masses simply do not like protesters — and thus cannot be bothered to defend their right to protest peacefully and to be free from police state tactics and violence. But there does seem to be very little, and decreasing, tolerance for their activities. Perhaps this intolerance even extends to journalists, who can highlight protesters’ messages and instances of abuse. This generally negative attitude holds not only at high-profile conventions but across a range of places and contexts. In the book, I discuss many instances of police misconduct and denial of fundamental expressive rights that received little or no attention from the media, law professors, or other commentators. These are instances in which our high First Amendment rhetoric fails to match the reality on the ground.
Perhaps to highlight an egregious case like Goodman’s may, for some, come too close to acknowledging that officials in Denver and St. Paul (as in Boston and New York in 2004) over-reacted or abused their authority in some circumstances. It may come uncomfortably close to acknowledging that none of the peaceful protesters arrested or subject to abuse at the conventions actually “had it coming.”
September 8, 2008 at 4:30 pm
Posted in: First Amendment
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Responses (15)
JP - September 8, 2008 at 6:37 pm
I’m not sure the reason is entirely that the protesters “had it coming.” Rather, the intuition may be that at least some of the protesters are publicity-seekers trying to get arrested. Why encourage their activities by publicizing it?
Journalists raise a different question, though they wouldn’t seem to need libertarian blogs to publicize their stories.
Finally, I think that all of the commentary I saw during the conventions on the protests and police tactics was via Instapundit, a blogger of libertarian persuasion. Nothing from Prof. Leiter; perhaps I have missed it.
Patrick S. O'Donnell - September 8, 2008 at 6:39 pm
I think your “less rational and…equally plausible reason that many people are not especially bothered or exercised by the events in Denver and St. Paul,” is far and away the more persuasive of the two reasons. Indeed, I suspect it often goes hand-in-hand with the perspective that “view(s) militarization as invevitable and in some sense justified.” Despite all the ideological claptrap about “liberty” or “freedom” in this country I think most Americans have little understanding of freedom in the fullest (psychological, existential, philosophical) sense, apart from their lack of appreciation of the social and political liberties that permit the possibility of such freedom, let alone for freedom to flourish. Little has changed since Erich Fromm wrote Escape from Freedom in 1941: most Americans are conformists and utterly lack the capacity to think for themselves, living lives that revel in the “escape from freedom,” hence the “chronic, low grade schizophrenia” Fromm “felt characterizes the pathology of normalcy in the present age” and expressed in the transition in psychoanalysis from the “ideal-typical ‘classical’ patient suffering from oedipal-level neurotic pathology” to the post-WWII analysand who “suffers from pre-oedipal, narcissistic, and borderline character disorders–often centering on problems of individuation and the coherence of the self” (Joel Whitebrook). Fromm put it simply and succinctly: “The automatization of the individual in modern society has increased the helplessness and insecurity of the average individual. Thus, he is ready to submit to new authorities which offer him security and relief from doubt.” Genuine individuality or autonomy is perhaps more elusive today in our country than at any other time in our history insofar as individualism is confused with “style” and “novelty.” True individuality cherishes both the conditions of and opportunities for freedom and thus can well appreciate the value of protest.
John Armstrong - September 8, 2008 at 6:48 pm
I’ll second JP’s intuition. I support a lot of the underlying ideas protesters advocate, but I’ve grown sick and tired of it after being on a college campus full of them.
As I see it, many modern protesters are just in it for the image, either to the public or to their peer group. They have grown up decades after the 1960s, and they’ve completely romanticized that era. They are only interested in the glamorous side, out manning the lines; the long years of petitioning and working within the system that lead up to that point, not so much.
What I’d point to for a good example in recent events is Bloomington, MN (where the Mall of America and a number of hotels are located). The city sat down with representatives of local authorities on one side of the table and representatives of protest groups (like the ACLU) on the other, and hammered out an agreement both sides could be happy with long before the convention. And I didn’t hear about any difficulties in Bloomington, even from my family who live across the highway in Richmond.
Orin Kerr - September 8, 2008 at 7:24 pm
I agree with JP, as well.
Indeed, I don’t think it’s unfair to speculate that the anarchist groups put all of their plans about blockading the city on a public website in order to make sure the city had thousands of police to try to stop the blockade. If you think that society is too militarized, a good way to make the point memorably is to loudly create a threat of a riot, draw out the police in their riot gear, and then get arrested by them with the cameras rolling.
Patrick S. O'Donnell - September 8, 2008 at 7:53 pm
My experience with, for example, the protests against the war in Iraq, would not allow the inference that “many modern protesters are just in it for the image, either to the public or to their peer group.” No doubt some will have questionable or mixed motivations, but I simply see no reason to question the manifest motivations and public reasons for protest. It’s funny how we can readily resort to purist moralizing when it comes to members of social movements and political protest groups, thereby holding them to standards far stringent and loftier than the general public (silent masses). Many of the aforementioned protesters I was acquainted with have long struggled to bring about social justice and progressive political change both within and outside “the system,” and the young people I met were often associated with groups and organizations that have engaged in and are focused on conventional political activity. Romanticization of the ’60s? Good for them (the young, especially the more idealistic, are prone to such romanticization as a rite of passage as it were; one can imagine and I have witnessed far more disturbing and darker things among young people). I suspect most young people know very little about the ’60s…and there’s still much to be learned from the social movements, countercultural expressions and Liberal/Left politics of the period.
The ACLU a “protest group”?
Incidentally, while their actions bring them disproportionate attention, true “anarchists” are typicallly a very small percentage of most protests, much as the Trotskyites and Marxist-Leninists were in another era….
Many of those on the “outside looking in” fail to appreciate how their perspectives are strongly shaped by mass media coverage of these protests. Still an essential book to read on this score is Todd Gitlin’s The Whole World is Watching: Mass Media in the Making & Unmaking of the New Left (1980) (Also of interest is Darnell Hunt’s Screening the Los Angeles “Riots”: Race, Seeing, and Resistance, 1997).
John Armstrong - September 8, 2008 at 8:33 pm
I suspect most young people know very little about the ’60s
I’d agree, and that’s the problem. These young people know nothing beyond the glitz and the gloss, and very little of the less photogenic side.
Many of those on the “outside looking in” fail to appreciate how their perspectives are strongly shaped by mass media coverage of these protests.
And these young people fail to appreciate how their perspectives on 1960s activism has been strongly shaped by mass media protests.
I’m not saying that every protester is shallow, and I’m not saying that anyone “taking action” (beyond marching and waving placards) doesn’t believe it’s for a Good Cause™. What I’m saying is that they’re as much in it because “actions” are cool.
Howard Wasserman - September 8, 2008 at 8:56 pm
I think Orin is precisely describing what civil disobedience is supposed to be about–violate the law in order to call attention to the injustice of the law. Publicity is essential to that goal.
It also strikes me as unfair to suggest that today’s protesters are not engaged in legitimate action because they are in it for the coolness of “taking action,” any more than to suggest that protesters in the 1960s were doing it just to piss-off Mom and Dad.
As for the point about the protesters and government sitting down and hammering out protest details: major portions of Tim’s book (which I enjoyed and relied on in my recent work touching on political protests) discuss the problems with the “insititutionalization” of public protest reflected in such pre-convention sit-downs.
Orin Kerr - September 8, 2008 at 10:46 pm
Patrick,
I think a key point in JP’s comment is that it is a small group of protesters that wanted to get arrested (and were). Most protesters were of course peaceful, expressed their First Amendment rights, and were left alone.
Howard,
I guess I don’t really see it as civil disobedience for two reasons: 1) some of the protests turned violent and 2) after reading the websites of the protest groups, I can’t figure out what cause they are protesting. (I have guessed that the cause is probably something about the war in Iraq, but the websites of the groups don’t really seem to talk about Iraq as much as “the system,” whatever that means.)
David Bernstein - September 8, 2008 at 11:45 pm
This libertarian blogger finds it troubling that you seem to conflate “publicly dissenting” and “trying to disrupt political conventions.” “Public dissent” should be permitted to the fullest extent. “Trying to disrupt a political convention” is a violation of both the free speech and property rights of those holding the convention (as well as the rights of those who want to listen), and of course “people shouldn’t be doing” this. The protesters themselves seem to try to blur this distinction, which makes it rather difficult to figure out exactly what was going on without doing a fact-intensive investigation that more appropriate for on-the-scene journalism than for blogging as a pastime.
Patrick S. O'Donnell - September 8, 2008 at 11:58 pm
Nonviolent civil disobedience sometimes has a an unintended by-product violence, either by people not committed to nonviolence who become involved in a particular demonstration, scheduled event, what have you, or a result of police provocation. It is well documented that the FBI and other law enforcement agencies often planted agents provocateurs to initiate or instigate acts of violence in the 60s and 70s, so such violence is not always, strictly speaking, the result of actions by the participants themselves. Being peaceful and expressing First Amendment rights is hardly assurance that one will not be subject to arrest: only someone who has not participated in a large public protest could believe such a thing.
Of course criteria for what constitutes civil disobedience vary, thus the sort propounded by Gandhi, for example, are not shared by everyone. And sometimes civil disobedience may be a way of publicizing a particular injustice or other egregious violation of conscience but the law being broken as part of that CD is not itself at issue, as was often the case in the Clamshell and Abalone Alliances (in late 70s and early 80s) on the East and West coasts respectively that broke, say, trespassing laws to get arrested in their protests against the siting of nuclear power plants.
Howard Wasserman - September 9, 2008 at 7:32 am
I am not sure David’s two concepts are so distinct. Partly this is because “disrupting” can mean so many things. It might mean nothing more than adding more bodies and more loud voices to the public-expressive mix and possibly distracting attention (of the public, the press, and, perhaps, convention-goers) from the convention and calling attention to the counter-speech. That is not a violation of anyone’s free-speech rights, but simply the result of a multiplicity of voices in the public space.
And partly this is because one form of civil disobedience is to try to gum-up the public and private works (in a non-violent manner)–this is what sit-ins, group gatherings, boycotts, pickets, human blockades, etc., are all about. I would not exclude such actions from the definition of legitimate public protest.
In addition to Patrick’s point about violence as an unintended consequence, I would argue that, at least in some instances, there is a prior question of what caused the protests to turn violent. Often, the violence is sparked by the police response to all protests–massive shows of force and an increasing police willingness immediately to move and disperse crowds and to effect mass arrests. This is not to lay blame entirely on the shoulders of police, but to suggest that the fact of things turning violent does not necessarily exclude this as civil disobedience.
Orin Kerr - September 9, 2008 at 10:30 am
Patrick,
In this case, he group’s own website indicates that violence was indeed the goal. Given that, I don’t know we we need to hypothesize about how the police may have instigated this, unless you are suggesting that undercover government agents commandeered the group’s website and the members of group decided not to change it over the last year that the site was up.
David Bernstein - September 9, 2008 at 12:27 pm
“And partly this is because one form of civil disobedience is to try to gum-up the public and private works (in a non-violent manner)–this is what sit-ins, group gatherings, boycotts, pickets, human blockades, etc., are all about. I would not exclude such actions from the definition of legitimate public protest.”
Legitimate in what sense? If the question is whether engaging in a “sit in” on someone else’s property inherently makes someone evil, I’d say obviously no; sometimes it’s even the right thing to do. If the question is whether I inherently have sympathy for people who do such things, regardless of how much they are interfering with the rights of others, and regardless of how dumb/evil the cause they are working for is, the answer is also no. Quite the opposite, given that sit-ins, human blockades, etc., violate other people’s rights, I have a strong presumption against those who do such things.
Patrick S. O'Donnell - September 9, 2008 at 1:04 pm
Orin,
You have a distorted (inaccurate) picture of what took place during the protests (at least those outsided the RNC), as it was in no way about “one group” and only members of *that* group:
“About 10,000 largely peaceful protesters marched for the most part against the war in Iraq on Monday and on Tuesday 2,000 more marched to aid the homeless and the poor.[28] Marchers protested diverse issues and came to Saint Paul from many organizations including Veterans for Peace, Iraq Veterans Against the War, Military Families Speak Out, the Teamsters, Code Pink and the American Indian Movement.[29][30] About 1,000 people in place for the third major and the last sanctioned march, were stopped on Thursday by police.[31] The march had been organized and publicized by the Anti-War Committee, who supports nonviolent action and civil disobedience and cooperated with groups who support anarchism, to protest at the time of McCain’s acceptance speech.[32]
The Poor People’s Economic Human Rights Campaign march to abolish poverty on September 2Ron Paul’s Campaign for Liberty and 10,000 Ron Paul supporters attended the Rally for the Republic, a protest convention on September 2 held a few miles from the convention center at the Minneapolis Target Center in direct contrast to the Republican National Convention.[33]
Several groups had been preparing to protest near the convention.[34] In early January 2008, protesters marched from the Minnesota State Capitol to the Xcel Center in hopes of securing a protest permit.[35] The Saint Paul police authorized the event, but only approved the permit through July. On February 8 and February 9, 2008, anti-war protesters attended a weekend conference at the University of Minnesota to discuss the protests and anti-war rally.[36] On February 28, 2008, the Associated Press reported that the Saint Paul Police Department adopted new guidelines for the investigation of protest groups. The police department said that this did not have anything to do with the convention.[37]
Planning, however careful, was followed by unexpected preemptive raids at the start of the convention, initiated by the local sheriff,[43] and in coordination with the FBI.[44] Six persons were arrested during five police raids on homes in Minneapolis and Saint Paul during the weekend preceding the convention and hundreds more were detained.[45]
Police in downtown Saint Paul on September 2Several aspects of the police raids were unusual enough to merit attention from major media outlets.[46] In particular, raids on suspected protesters were performed by teams of up to 30 police officers wearing riot gear with weapons drawn.[47] Protesters involved in the raids were accused of fire code violations at a rental hall used by a group organizing RNC protests.[48]
On the first day of the convention, a group of protesters attacked approximately 30 or 40 delegates from Connecticut, one member of the delegation in the face, with a toxic substance thought to be diluted bleach.[49] Paramedics treated an 83-year-old member of the delegation for breathing problems when his credentials were ripped from his neck.[49] Additionally, self-proclaimed anarchists, clad in black, damaged property and lit at least one fire near downtown St. Paul.[49] About 12 protesters were arrested.[49]
Three journalists from Democracy Now!—including principal host Amy Goodman—were detained by police during their reporting on the protests.[50] According to a press release by Democracy Now!, Goodman was arrested after attempting to free two of the show’s producers who were in police custody;[51] all were held on charges of “probable cause for riot”.[52] Progressive news sources have criticized the arrest as unlawful and a violation of the freedom of the press.[53]
During the convention’s first three days, more than 300[54] individuals were arrested by police,[55] including journalists such as Associated Press photographer Matt Rourke,[28] health care workers and lawyer observers.[56] Some were released, and nearly half received felony charges.[56] Of these felony arrests, many cases were dropped or reviewed, sometimes for lesser charges, and about 21 were found to be prosecutable.[54] About 102 persons were arrested for unlawful assembly at a Rage Against the Machine concert in downtown Minneapolis.[57]
When a permit expired at 5PM on the last day of the convention, bridges were closed and police used tear gas or smoke bombs, pepper spray, mounted police and all-terrain vehicles to prevent an antiwar march organized by the Anti-War Committee that had begun at 4PM[58] at the state capitol.[57][59] Between 300 and 400 persons were arrested or held including 19 journalists, among them Associated Press reporters Amy Forliti and Jon Krawczynski,[59] reporters from Twin Cities Daily Planet and The Uptake, and Paul Demko of The Minnesota Independent.[60][61][59] Total arrests of convention protesters numbered about 700.”[62]
Notes are found at the Wiki entry: http://en.wikipedia.org/wiki/2008_Republican_National_Convention
JP - September 9, 2008 at 1:56 pm
Patrick,
I don’t think you have in any way shown that Orin’s view of the protests is inaccurate. I don’t believe he is disputing that there are protesters with non-violent intentions (probably the majority). But neither you nor anyone else have disputed that there are groups with the stated (and carried out) intention of inciting and engaging in violence, under cover of the larger protests.
I’m certainly troubled by the law-enforcement tactics, but I simply haven’t thought of a better alternative for ensuring public safety in this type of situation. Have you?
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