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| Landmark Decision Protects Activists Who Challenge the Government |
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Federal District Court Judge Gladys Kessler issued a landmark opinion on April 15th, 2002 protecting activists who sue the government from the possibility of government harassment and reprisal, by holding that the First Amendment privilege prohibits the Government from seeking compelled disclosure of the identities of demonstrators who wish to remain anonymous, information about protesters' political affiliation and prior political activities, organizational membership lists, contributor lists and volunteer lists. Judge Kessler referred to the law suit as raising "extremely important First Amendment issues," and rejected the defendants' argument that the information they sought was outside the protection of the First Amendment privilege and necessary for the conduct of their defense. Judge Kessler explained, "This is exactly the kind of information the First Amendment is designed to protect. There can be little doubt that such public identification of individuals who never intended their participation in First Amendment activity to thrust them into the harsh glare of the limelight is calculated to chill future political dissent and discourage participation in other protest activity. Consequently, discovery requests from Defendants that seek such information will not be allowed." The government defendants, represented by the Ashcroft Justice Department and others, had sought to compel disclosure of these categories of information through the litigation process in International Action Center, et al. v. United States of America, et al. The lawsuit charges the U.S. Government, the Bush / Cheney Presidential Inaugural Committee, and the District of Columbia with constitutional violations including the use of government agents provocateurs who assaulted protesters lining the parade route, the discriminatory operation of security checkpoints to deny access to protesters, and unconstitutional disruption tactics of the police Civil Disturbance Units. Plaintiffs, protesters at the Bush Inaugural, requested a protective order from the Court, asserting that the Ashcroft Justice Department and the Bush / Cheney Presidential Inaugural Committee were using the litigation process "for intelligence purposes" and to create "an enemy's list of all persons who have ever engaged in political dissent." Attorneys from the Partnership for Civil Justice argued that the government had created an atmosphere ripe for government reprisal and harassment against those who would dare dissent from the Bush Administration. They pointed to John Ashcroft's December 6th statement warning that those who dissented from his policies were akin to aiding terrorists, to George Bush's warning that "you are either with us, or you are with the terrorists," and to White House spokesperson Ari Fleischer's September 26, 2001 warning that now is not the time to engage in political dissent. Protesters contended that the First Amendment protected them from having to disclose this broad range of information, even where protesters had filed suit to challenge constitutional violations of their rights. They argued that disclosure would stifle and chill mass demonstration activities, as protesters often engage in mass protest anonymously, and would refrain from doing so were their anonymity lost or were their identities given to a hostile government. The Court granted plaintiffs' request in entirety, writing that "[t]he breadth of information sought by the government is, to say the least, extraordinary." The Court stressed the importance of privacy for participants in mass demonstrations, citing U.S. Supreme Court precedent, that "once the participants lose their anonymity, intimidation and suppression may follow. And privacy is important where the government itself is being criticized, for in this circumstance it has a special incentive to suppress opposition." Attorney Carl Messineo praised the ruling. "This ruling establishes that protesters do not lose their First Amendment rights when they go to Court to vindicate those rights." Attorney Mara Verheyden-Hilliard elaborated, "We have entered into a new era of government repression with the Bush Administration, the Ashcroft Justice Department and the Congressional passage of the USA PATRIOT Act. A primary way for people to resist may is to take to the streets in mass protest. This ruling offers encouragement and protection, not just for those who engage in large scale protest, but for all those who use the judicial system and the democratic process to put an end to the unconstitutional and lawless government conduct that has become far too prevalent." This decision comes on the heels of another substantial defeat for the defense in this lawsuit. On March 15th, the Court denied in entirety the Bush / Cheney Presidential Inaugural Committee's motion to dismiss the protesters' case, rejecting each of the PIC's presented arguments. The ruling recognizes that the PIC can be held responsible for having violated the constitutional rights of protesters, based on the allegations in the complaint. Click below for a pdf copy
of: Judge Kessler's March 15th Order Denying the PIC's Motion to Dismiss |
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