I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, February 01, 2006

Learning from Dear Leader

(updated below - updated again, several times)

(updated one last time to reflect that the Capitol Police admit they made a mistake because Sheehan broke no laws or rules)

I disagree with lots of things which Cindy Sheehan says but if the circumstances of her arrest last night at the State of the Union speech are anything like what she describes them as being (h/t Lis Riba), then her arrest is completely disgraceful.

I tend to believe her account because most of the facts she recites don't seem to be in dispute, and the accounts in the major news organizations, which apparently interviewed the law enforcement agencies involved in the arrest, are reporting much the same thing. In essence, Sheehan sat in her seat, took her jacket off, and was wearing a t-shirt which read: "2245 Dead. How many more?" As soon as she took her jacket off, she was pulled out of her seat, arrested, and taken out of the hall.

This is nothing more than a naked attempt to stifle dissent and to create a criticism-free bubble around George Bush. Presidents routinely use all sorts of propagandistic imagery at the State of the Union to decorate their speeches with an aura of regal patriotism. We always see weeping widows and military heroes and symbolic guests of all sorts who are used as props and visuals to bolster the President's message both emotionally and psychologically. The State of the Union speech is hardly free of visual messages and propaganda of that sort; quite the contrary.

But we apparently now have a country where the only ideas allowed to be expressed in our Nation's Capitol while the President is speaking are ones which glorify the Government and its Leader and where dissenting views are prohibited and will subject someone to arrest. Message cleansing of that sort belongs at a political rally in North Korea, not in Washington, DC.

There have been stories here and there of the Secret Service and other federal government agencies exercising the police power of the state for no purpose other than to stifle dissent. Virtually every appearance of George Bush is meticulously and vigilantly staged to ensure that he is surrounded only by agreement and adoration and almost never dissent of any kind.

This is plainly unhealthy and disgustingly contrary to every defining core American value. Our leaders aren't entitled to reverence and worship and aren't supposed to want it. Criticism, dissent and divergence of opinion are things which the founders did everything possible to foster, and the idea that someone is dragged out of a speech by the President for silently and peacefully wearing an anti-war t-shirt is disgraceful and embarrassing.

And these attacks on dissent are particularly ironic given that they occurred in the midst of a speech by a President who loves to lecture the world on the virtues of liberty and who holds himself out as the Chief Crusader for freedom and democracy.

In fact, as Cindy Sheehan was being dragged out of the Royal Speech, His Majesty was regaling us with the importance of respecting civil debate, the virtues of diversity and freedom, and the need to protect minority views. It's as if there was some universal force that wanted to provide the most compelling demonstration possible of how disingenuous his speech was, and came up with the idea of having Cindy Sheehan dragged out of the hall for doing nothing other than wearing a t-shirt politely expressing criticism of Bush's war.

UPDATE: The law is clear that Sheehan did nothing illegal and there was no legal basis whatsoever for removing and arresting her for wearing that t-shirt.

In Bynum v. U.S. Capitol Police Bd. (Dist. D.C. 1997) (.pdf), the District Court found the regulations applying 140 U.S.C. § 193 -- the section of the U.S. code restricting activities inside the Capitol -- to be unconstitutional on First Amendment grounds. Bynum involved a Reverend who was threatened with arrest by Capitol Police while leading a small group in prayer inside the Capitol. The Capitol Police issued that threat on the ground that the praying constituted a "demonstration."

That action was taken pursuant to the U.S. Code, in which Congress decreed as follows: "It shall be unlawful for any person or group of persons wilfully and knowingly . . . to parade, demonstrate or picket within any Capitol Building." 140 U.S.C. § 193(f)(b)(7).

As the Bynum court explained: "Believing that the Capitol Police needed guidance in determining what behavior constitutes a 'demonstration,' the United States Capitol Police Board issued a regulation that interprets 'demonstration activity,'" and that regulation specifically provides that it "does not include merely wearing Tee shirts, buttons or other similar articles of apparel that convey a message. Traffic Regulations for the Capitol Grounds, § 158" (emphasis added).

Nothing Sheehan did could even be remotely construed to constitute a "demonstration." She was sitting quietly in her seat wearing a t-shirt, an activity which is expressly excluded from the activities prohibited by this statute and, in any event, could not possibly be criminalized consistent with the First Amendment. We don't have a system of government -- at least we didn't used to -- where someone can be arrested for wearing a t-shirt that expresses criticism of the President.

Isn't that just the most basic political value that we have? What kind of Americans sit idly and passively by while they watch a fellow citizen arrested and removed from the Capitol during a political speech for doing nothing other than wearing an anti-war t-shirt?

UPDATE II: If you are someone still in need of dispositive proof that Michelle Malkin is one of the most un-American, liberty-hating, disturbing creatures around, please see this rancid post of hers (h/t Mahablog) where she calls for Rep. Lynn Woolsey to be barred from inviting anyone to such speeches in the future because someone she invited wore a t-shirt which was critical of The Leader.

UPDATE III: Apparently, there were some actions taken at the State of the Union speech which -- despite clearly constituting "demonstrations" (which, unlike t-shirts, are actually prohibited by the U.S. Code) -- were allowed and apparently encouraged:

(The top photo, showing grown men wiggling their purple-ink-stained fingers around in the air, was apparently depicting a demonstration from last year's State of the Union speech. None of the participants in the Purple Fingered Dance Demonstration were arrested or asked to leave).

UPDATE IV: Steve Benen at The Carpetbagger Report has compiled some of the numerous, disturbing incidents where individuals have been banned, and often removed, from Bush speeches because they wore t-shirts expressing anti-Bush views.

As I said in Comments, I would be less inclined to become agitated over this incident if it weren't for the fact that there is a long line of similar incidents where the Administration has clearly taken steps to prevent the President from being exposed to dissent of any type. The White House goes to great lengths to ensure that the Commander-in-Chief appears only with the most regal and glorifying imagery and sloppy, unplanned political messages conflict with that propagandistic stage-managing and are thus expressly prohibited.

UPDATE V: The Capitol Police are dropping all charges against Sheehan because, as they admit, they never should have removed or arrested her because she broke no laws or rules:

WASHINGTON - Charges against antiwar protester Cindy Sheehan, who was arrested after an incident involving a T-shirt she wore to the State of the Union address, will be dropped, officials told NBC News Wednesday. . . .

But Capitol Police will ask the U.S. attorney's office to drop the charges, NBC News’ Mike Viqueira reported Wednesday.

“We screwed up,” a top Capitol Police official said, speaking on condition of anonymity. He said Sheehan didn't violate any rules or laws.

It also appears that they removed Congressman Young's wife only because they were aware that if they failed to, they would be accused of unequal treatment:

Beverly Young was sitting about six rows from first lady Laura Bush and was asked to leave. She argued with police in the hallway outside the House chamber.

“They said I was protesting,” she told the St. Petersburg Times. “I said, ‘Read my shirt, it is not a protest.’ They said, ‘We consider that a protest.’ I said, ‘Then you are an idiot.”’

They told her she was being treated the same as Sheehan, who was ejected before the speech. Sheehan had wrote in her blog Wednesday that she intended to file a First Amendment lawsuit.

I still find the whole episode rather disturbing and suspicious. It is crystal clear that the law does not and cannot prohibit the wearing of t-shirts with political messages in the Capitol because t-shirts do not constitute a "protest" or a "demonstration." The Capitol Police's own rules say that expressly and a federal district court has held that the First Amendment does not permit the law to be applied so as to bar non-disruptive conduct.

The Capitol Police officers who removed and arrested Sheehan had to have known that. An after-the-fact apology and admission of wrongdoing, while nice, does not really remedy the misconduct, which still seems vaguely intentional and motivated both by the identity of the person arrested and her message.

And it is still unclear, to put it generously, why Sheehan -- who apparently complied with the request to leave -- was arrested and detained for four hours, while Young, who argued bitterly with the Police and even called the officers "idiots," was simply asked to leave and not arrested. All of this is such a significant story primarily because there is a long line of events under the Bush Administration where people with dissenting opinions are thrown out of public events and divergent views are kept far away from the Commander-in-Chief. This incident grew out of that climate and is clearly a part of it.

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