Judge Affirms Legality of Denver Protest Plans

Posted August 8, 2008 at 4:56pm

Two weeks before the Democratic National Convention, Denver’s plans for protesters are all but set in stone.

Last week, a federal judge approved the city’s plans for a protest area, and the American Civil Liberties Union quickly declared that it wouldn’t be appealing the decision.

City officials heralded the ruling, pointing out that Denver is the only DNC host city since 2000 to have its plans completely upheld in court.

“The headlines only talk about the outcome, but over the course of the last two years, we have been meeting and receiving input from the ACLU and others,” said Katherine Archuleta, senior policy adviser to Denver Mayor John Hickenlooper. “We don’t always have to agree, but that’s just life.”

The ACLU also withdrew its challenge to the demonstration zone for Invesco Field — which will be about 500 feet from the stadium where Sen. Barack Obama (Ill.) will give his acceptance speech.

Tens of thousands of protesters are expected to show up to this year’s convention, vying for a chance to tell delegates their views on the Iraq War, immigration and even medical marijuana.

But unlike the city, they aren’t at all happy about the outcome.

The court decision means they will have to stay behind a wire-mesh fence and two rows of concrete barriers — an area one group has dubbed the “freedom cage.”

Protesters say the city-created “demonstration zone” is too small and too far from Denver’s Pepsi Center, where the convention will be held in two weeks.

But U.S. District Judge Marcia S. Krieger ruled that the restrictions were “justified by important government interests” and did not violate protesters’ First Amendment rights.

The decision ends months of litigation between the city and protest groups. Led by the ACLU, more than a dozen groups filed a lawsuit in May, first demanding that the city release its plans for protesters and later objecting to the content of the plans.

The court’s decision “reflects a recent trend in the law,” said Mark Silverstein, legal director of the Colorado chapter of the ACLU. “At the ACLU, we think it is regrettable that the trend is to defer to arrangements made in the name of security at the expense of civil liberties.”

This year, those security arrangements will mean shut-down streets, a closed-off perimeter around the Pepsi Center and millions of dollars of equipment for police.

It also means there won’t be many places where protesters can gather close to the Pepsi Center. Those in the 50,000-square-foot demonstration zone won’t get a good view of the Pepsi Center itself, though they will be next to media tents and the drop-off point for many delegates.

Silverstein acknowledged that the circumstances are better than those at the 2004 Democratic National Convention in Boston, where the protest area was underneath a railroad track, surrounded by fencing and topped with razor wire. A judge ruled that the “pen” was unconstitutional, but the decision came too late to change the locale.

This year, because of an early lawsuit, the city released its plans sooner than in the past and negotiated at length with protest groups, Silverstein said.

Partly because of those talks, Silverstein said, city officials agreed to provide loudspeakers in the protest area, to refrain from searching everyone and to display protest literature at a table in the Pepsi Center.

By the time the lawsuit came to trial, the plans were apparently fair enough for Krieger.

In a 70-page opinion, she wrote that the protest area was an acceptable arrangement considering the security and traffic issues that also needed to be addressed.

She also rejected the crux of the protesters’ argument: that the demonstration zone is not “within sight and sound” of the Pepsi Center and thus is a violation of the First Amendment.

Sight and sound can mean many things, she said. For example, do you have to be close enough to discern a person’s features or simply close enough to see a sign?

“Despite its catchy and cogent format, the phrase ‘sight and sound’ does little more than restate the obvious — expressive speech is designed to communicate,” she wrote. “What restrictions will permit communication depend upon the particular circumstances in which they are imposed.”

Krieger still questioned the effectiveness of some of the city’s security plans. But that, she wrote, was not relevant to the case.

The “First Amendment does not require the Defendants to create an ideal, or even the least restrictive, security plan,” she wrote. “They are merely obligated to devise a scheme that does not significantly overburden First Amendment rights.”

The judge “is giving total deference to the claims of the needs for the security arrangements,” said Mark Cohen, co-founder of the local Re-create 68, “and we think they’re overly broad and restrictive.”

As an example of potential threats, government witnesses pointed to Re-create’s Web site during the trial. The site offers a document that outlines “street tactics,” including how to create body armor and shields to keep police at bay.

“We put those up there without endorsing them. For the most part, they’re just defensive measures,” Cohen said. “We know from previous conventions that police tend to overreact. We wanted people to be able to protect themselves.”

But police officials said they took such threats seriously. And now, some protesters plan to protest the protest area itself.

“We’re going to have our march and go down to the fenced area and we’re going to see what happens with that security perimeter,” said Glenn Spagnuolo, who co-founded Re-create 68 along with Cohen. “We’re not going to go into a cage like good little sheep. That’s not going to happen.”