Past As Prologue: Trading First Amendment Rights for Freedom of Movement

Banned from Protesting in the Nation’s Capital for Five Years Back in 1967

by Dave Lindorff - This Can't Be Happening

August 3, 2020

Portland isn't the first time federal judges have made accepting a ban on protest a condition for avoiding jail

As I was reading reports that judges and magistrates in the Federal District Court in Portland, OR have been handing out sentences to protesters arrested by President Trump’s Homeland Security goons that included bans on future protest in Oregon, I suddenly had a sense of deja vu.

Back in October 1967, when I was one of hundreds arrested and beaten on the Mall of the Pentagon during a night-long sit down in front of armed US troops, and found myself charged with misdemeanor trespass and jailed at Occoquan Federal Prison until my arraignment, I ended up being sentenced to five days in prison, suspended on condition that I “never return” to protest in the nation’s capital.

It happened like this. I was in a large mass of detainees facing arraignment in a jail hearing room before a federal magistrate. I had been told that an attorney had been retained for my case by a group of faculty at Wesleyan University where I was a new freshman student. But my attorney had not arrived yet as the rather rapid and pro forma arraignment and plea process began.

I sat there watching fellow detainees before me going before this judge on similar charges as mine. Most had no attorney. I saw how those who pleaded guilty were given a $25 fine and told they could leave. I also saw how those who pleaded innocent were given a court date and required to post bail of some amount greater than that, though I cannot recall the sum, and were sent back to their dormitory cell to wait, perhaps days, for a lawyer and a court date. I also saw how those who pleaded “no contest” were given a $25 fine and a five-day suspended sentence, which usually included the admonition from the judge against future protesting in the District of Columbia. He explicitly warned that a future arrest for protest would result in the suspended five-day jail sentence being automatically reimposed.

I thought about my options until my turn came, hoping in vain that my attorney would arrive. Ultimately when called and still without legal counsel, I chose the “no contest” option. After all, I had done nothing wrong in marching on the Pentagon and in sitting peacefully on the Mall in front of that monstrous headquarters of the US war machine. It’s a free country, I had reached the Mall, like tens of thousands of others, by crossing a wide lawn after crossing a bridge over the Potomac River, and, unobstructed from any fences or guards, had ascended the stone steps to the Mall as, I suppose, any curious tourist could have done. So I was not going to be intimidated into pleading “guilty” trespass on public property when I didn’t feel guilty.

Nor did I take the judge’s ban on future protests in Washington, DC very seriously. Of course I would be back as long as the criminal war against the people of Vietnam continued, and if I ended up getting busted again, and had to serve my suspended five-day sentence plus some other possible penalty, so be it.

To be honest, at the time, just an 18-year-old kid, it didn’t occur to me that what the judge had done in adding the protest ban condition to my sentence might be — well certainly was! — a violation of my First Amendment right to “peaceably assemble” and to “seek redress of grievances.” 

But looking back, I realize that it was precisely that. And I do remember at least wondering, on the the many future times that I joined protests in Washington against the ongoing Indochina War that continued for another nearly six years, whether if I ended up getting arrested, that threat of having my suspended sentence activated would pop up in my record and I’d end up locked up for five days on top of any other penalty I might face.

That thought never deterred me or made me take extra precautions against getting arrested, but nonetheless, it was an issue that nagged at me every time for years, until I decided that there must be some statute of limitations on such a penalty and just put it out of my mind.

Civil liberties lawyers are decrying the similar conditions that the federal court in Portland has been handing out to Homeland Security detainees being prosecuted by the Portland US Attorney’s Office, saying that extorting a defendant’s agreement to a ban on protest in return for release from custody is unconstitutional, and I certainly agree. I wish I had waited for my promised attorney to arrive so I could have challenged my own unconstitutional sentence at the time, but having seen how brutally the judge was responding to others being arraigned when they asked for a delay in their arraignment, that I decided to just cop a “no contest” plea to the charge I faced.

Still, I find it galling that this was allowed to happen.

Clearly violations of the First Amendment and other constitutional protections against government overreach such as spying, arrest without charge, illegal search and seizure, unreasonable detention and cruel and unusual punishment, among others, are and have been happening for decades.

The big difference is that years ago when they happened, there was a fairly good federal court system and a US Supreme Court that was willing to toss out the most egregious violations of those rights. For example, American Indian Movement leader and Oglala Lakota activist Russell Means was arrested in the late 1970s and was required, by a South Dakota state judge as a condition of release on bail to accept a ban on participation in AIM activities. He appealed to a federal court, where a district judge overturned that ban as a violation of the First Amendment.

These days, after being stacked by appointees from two terms of the George W. Bush/Dick Cheney administration and four years of stacking with even worse appointees by President Trump, not to mention at least six years during which President Obama faced obstructive efforts by Senate Republicans who successfully blocked many of his appointees to the federal courts, I would not count on arrested protesters having their First Amendment rights being protected there any longer.

US Americans are facing grim times. We have an unidentified federal gestapo working for the fascist Homeland Security Department and under direct orders from the Trump White House attacking legitimate political protest activists with militarized force and kidnapping them off the streets. They then face these kinds of unconstitutional penalties. Plus we have a president who has dictatorial ambitions and a Republican-led Senate that has no principles and no intention of stopping him, and a federal court system that is increasingly filled with pro-government, pro-authoritarian, right-wing judicial activists.

Things I fear, will only get worse unless the American people decide “Basta!” and stand up against this no longer creeping, but rather galloping move towards state fascism.

It’s no longer good enough to just say, when one’s rights are violated, “Oh I’m not going to let that deter me,” as I did when my First Amendment rights were taken away by a judge in 1968. We all need to challenge such actions reflexively when we are confronted by them. Not just for ourselves, but for the future of all of us.

On that note, let me add that with the help of John Whitehead and his Rutherford Institute, I have retained an attorney and am planning to file a federal lawsuit against the US Justice Department, the Department of Homeland Security and the FBI challenging their inclusion of my name on their Terrorism Watch List, a disturbing fact I became aware of last spring on two flights from the US to Europe and the UK.

I was informed that I was on the list by British airport security officials to conducted a search of my carry-on luggage and electronics looking for explosives. Our intention is to demand my removal from that list, and to make a First Amendment motion for discovery to find out why a journalist with no criminal record (other than my 1967 arrest at the Pentagon) was placed on a terrorist suspects list. It seems clear that, as has been the case with other journalist who have found themselves on that list maintained by the FBI and accessible to both Homeland Security and the nation’s state and local police, this is a case of harassment and punishment for articles I have written critical of the government.

Stay tuned.