An update on the case(s) against Bursey: The state charge was dropped pretty much immediately, after the powers that be checked the law books and found out that Bursey had already litigated an airport free speech case to the South Carolina Supreme Court more than two decades ago and won a resoundig victory that effectively precluded prosecution under the facts of this case.
The federal prosecutors have insisted on going forward with their prosecution but have run into a number of roadblocks. On the initial trial date, the defense showed up with a motion to dismiss arguing that the indictment had omited important elements of the crime with which Bursey was charged (basically an intent to disrupt the proceedings or some other improper motive). The judge asked for briefs and delayed the trial for several months. I'm not sure if that challenge has been resolved yet. Meanwhile, the defense asked the judge to require the Secret Service and the Bush campaign to turn over planning materials, maps, etc. that they argued would show both an intent to discrminate against anti-Bush demonstrators and a lack of significant security rationale. The judge reviewed a bunch of material en camera and, in large part, granted the defense motion. As far as I know, there is no word on whether the Secret Service or Bush campaign will comply or on whether the case will go forward. On 26 Sep 2003 at 16:38, Bryan Wildenthal wrote: > Some off-the-cuff responses to Mark's very thoughtful and thought-provoking > questions are set forth below. > > First, I would add here this item to the mix of this discussion (sorry if I > am repeating some earlier mention of this, if so I missed it): The > Economist magazine reported (June 21, 2003, pp, 26-27) that the South > Carolina US Attorney (Strom Thurmond Jr) was prosecuting an elderly > protester for allegedly trespassing into the "security zone" set up for King > George's (woops, I mean President Bush's) arrival at the Columbia SC > airport. The defendant, Brett Bursey, simply held a protest sign. > Prosecutors say Mr. Bursey was supposed to be in the "special free-speech > zone" set up half a mile from the hangar where Bush was arriving. The > Economist quotes Mr. Bursey as "defiantly" teling the cops at the scene that > "he was under the impression that the whole of America was a free-speech > zone." > > Several other anti-Bush protesters within the "zone" were not arrested, > however, nor were any of the hundreds of pro-Bush enthusiasts holding > pro-Bush signs, well within the alleged "zone" and right next to the hangar. > It sounds like it was an area effectively opened to the public, certainly > opened to those who wanted to welcome the President. Perhaps the precedents > finding airports not to be "public fora" will cause Mr. Bursey problems, > however. > > I found, and find, it disturbing that I only became aware of this case > through a (rather rightwing and often pro-Bush) British newsmagazine. > Admittedly, I don't regularly read a daily paper, since San Diego's is so > atrocious, but I do often browse the LA Times online and in print. I have > yet to see any mention of this case in any American media outlet. Has > anyone heard any updates on this case? > > Bryan Wildenthal > Thomas Jefferson School of Law > > -----Original Message----- > From: Scarberry, Mark [mailto:[EMAIL PROTECTED] > Sent: Friday, September 26, 2003 3:58 PM > To: [EMAIL PROTECTED] > Subject: Viewpoint Discrimination and Bush Protesters > > > > > > A lot of parks are more than a quarter of a mile across. Suppose the > President's staff announced that he would be speaking in a particular city > but did not specify a location-perhaps for security reasons. The city then > set up different places (parks across a street from each other) for pro- and > anti-Bush demonstrations. President Bush then appeared at or near the > location selected for the pro-Bush demonstrators, and as far away as > possible from the location of the anti-Bush demonstrators. That could easily > be more than a quarter of a mile away. Does anyone want to argue that in so > doing the President would have violated the First Amendment? Or that the > city would then have to change the permitted locations or allow anti-Bush > protesters onto the pro-Bush site? > > > [Bryan Wildenthal] > > I think the answer to the latter question is almost surely YES. > > > > > > Is the question whether the anti-Bush demonstrators are entitled to use > the publicity attracted by the President's appearance to advance their > message? Or maybe we could ask whether it is permissible for the President > to appear at what is essentially a closed meeting in what would otherwise be > a public forum (a park or town square)? > > > [Bryan Wildenthal] > > Answer to the latter: almost surely NO. Unless we are to suppose that U.S. > Presidents have some sort of royal prerogative to appear in public fora > "cleansed" of protesters. I had thought that notion went out with the > original "King George." Apparently US Attorney Strom Thurmond Jr thinks > otherwise. Perhaps that's what we get by treating US Attorney positions as > hereditary boons to the children of loyal servants of His Majesty. > > > > > > I'd assume that when he appears at the Republican convention next year, > anti-Bush protesters may legitimately be excluded from the building - but > can a park be closed to those who quietly and nondisruptively show > disagreement with a group that is holding an event at the park? > > > [Bryan Wildenthal] > > I'm hoping that Mark's answer to his rhetorical question, like mine, would > be NO. And I don't even think they need to be "quiet." Physically > non-"disruptive," OK, I'll give Mark that. > > > > > > I reserve a small local park (or a part of it) for my daughter's birthday > party (under a first come first served signup policy). Does the First > Amendment prohibit the city from allowing me to exclude persons from the > park (or from the reserved part of it) who want to picket (carrying signs > saying "Down with law professors and their children!")? > > > [Bryan Wildenthal] > > Unfortunately, yes. I think that is the price one would pay for choosing to > use a traditional public forum for the event. Incidentally, Mark may have > intended this as an amusing but unrealistic hypo, but actually this kind of > thing happens in the real world. Gay people and their families frequently > have been forced to put up with very serious instances of this kind of > political protest. Anti-gay religious groups like Kansas minister Fred > Phelps have frequently picketed and protested at same-sex marriage and > commitment ceremonies, funerals of known gay people (such as Matthew > Shepard), and even at christening ceremonies for the infant adopted children > of gay couples in at least two cases I have heard of, in Kentucky and New > Jersey. The protesters typically stake out public sidewalks or parks > adjacent to where the events are being held and hold charming signs saying > things like "God Hates Fags" and "Burn in Hell, Matthew." So gay people are > quite familiar with the First Amendment costs of those who would argue "Down > with gay people and their children!" And as a gay First Amendment fanatic, > I would defend the right of such protesters to express such sentiments in > traditional public fora. > > > > > > My tentative view is that a political rally is a little like the parade in > Hurley; if my group obtains the right to use the venue (under content and > viewpoint neutral time place and manner regulations), then we can exclude > persons who wish to put forward a contrary message. > > > [Bryan Wildenthal] > > Weeellllll, I would agree with Mark in the sense of "exclude" them from the > identifiable march or rally itself -- but not exclude them from the entire > public forum or vicinity, unless it is simply unfeasible to accommodate more > than one group simultaneously. Hurley involved a march on a public street, > where it seems "one group at a time" may be dictated by feasibility. But if > one group wants to hold a rally or a march in a park, I think the First > Amendment provides a very high level of protection toward any group that > wants to hold a competing "counter-rally/march" nearby. > > > > > > If that is right, then are Presidential appearances different, as a > constitutional matter, from political rallies? My intuition is that they > should be treated differently, and that citizens should have the right to > attend and to protest (quietly and nondisruptively), assuming the event is > not held out as being a political rally. The President represents the > government - in a sense he is the executive branch of the government - and > perhaps the right to assemble and petition for redress of grievances gives > protesters the right to attend the event, if the event is otherwise open to > the public and if the President is speaking as President, not as party > leader. > > > [Bryan Wildenthal] > > For reasons suggested above, I don't see why this distinction matters -- and > I think the very idea of such a distinction is troubling to First Amendment > principles -- and I think the distinction cannot realistically be applied. > I think the President -- and any politician or political figure -- must > accept the price of protesters regardless of whether he claims he is > appearing in a political or governmental capacity, so long as the appearance > is in a forum subject to the usual First Amendment rules. Who could > possibly separate those capacities? Presidents mix and blend the two roles > past the point of any reasonable ability to distinguish, except in an > utterly subjective and arguable sense that people would never find consensus > on. > > > >
