activist defense

on the intersection of activism and legal systems

Category: laws that criminalize activists

oakland’s city council votes to ban potentially destructive items at demonstrations

Early this morning, Oakland’s City Council voted to forbid protesters from carrying numerous items that could potentially be used as weapons. The proposal had been abandoned last year, but was reintroduced after a protester, in an apparently instinctive reaction, hit a waiter with a hammer in the frames of his glasses on July 15 during a demonstration against the jury’s verdict in George Zimmerman’s second-degree murder trial. Oakland City Councilmember Dan Kalb abstained from the vote due to concerns that demonstrators could be arrested for items such as protest signs with posts that don’t meet specifications. According to today’s San Francisco Chronicle article,

Oakland first tried to ban weapons from demonstrations in 2012, when Occupy Oakland protesters repeatedly bashed in downtown windows while battling with police. But the committee discussing that resolution took no action after irate protesters disrupted a meeting, saying the effort to ban the weapons was a violation of their free speech.

Although political repression does not wax and wane with the passage and repeal of individual anti-protest laws, every such law is another tool officers can use in their attempts to prevent demonstrations from disrupting business as usual. Montréal’s bylaw P–6, for example, bans blunt objects at demonstrations, specifically baseball bats and hockey sticks, which protesters used during the 2001 Québec City anti-FTAA demonstrations to knock tear gas canisters back at police. As police at demonstrations often use excessive force and sometimes kill protesters or bystanders, they can easily disperse crowds in which protesters can’t defend themselves against police weapons (e.g., tear gas).

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hundreds of people ticketed on may day for violating montréal’s anti-protest law

Montréal police ticketed 447 protesters yesterday, at $634 apiece, for participating in a May Day march. The march violated Montréal’s P-6 municipal bylaw, because no one provided the route to police for approval 24 hours in advance. According to the Montréal Gazette,

The city’s Anti-Capitalist Convergence (CLAC), which organized the International Workers’ Day march, said it does not file march routes with authorities as a matter of principle. In a news release, it said P-6 represses civil liberties, and is “only the latest instance of the repressive tendencies of the political elite.”

First introduced in 2001, a new version of bylaw P-6 went into effect in May 2012. Police have consistently used it against protesters. In addition to prohibiting masks and blunt objects, it stipulates that any demonstration can be declared illegal if police have reasonable grounds to believe it will cause a “commotion” or endanger public order.

federal judge dismisses lawsuit challenging the animal enterprise terrorism act

Yesterday U.S. District Judge Joseph Tauro dismissed the lawsuit five animal rights activists filed to challenge the federal Animal Enterprise Terrorism Act, which criminalizes protected First Amendment speech. Judge Tauro decided that the activists did not have standing to challenge the constitutionality of the 2006 law. The activists’ attorneys say they will appeal. According to the Center for Constitutional Rights press release,

The judge’s ruling was based on a narrow interpretation of the AETA as criminalizing only property destruction and threats, despite the law’s broad prohibition on causing an animal enterprise any loss of property, which is generally understood to include the loss of profit.

The AETA was first used on February 19, 2009, when four activists were charged under the law for allegedly participating in threatening demonstrations at the homes of University of California researchers who conducted tests on animals. (Full disclosure: I assisted the activists’ attorneys as support counsel.) U.S. District Judge Ronald Whyte dismissed the charges on July 12, 2010; but other activists charged under the AETA have been less successful.

burma ends decades-old ban on public gatherings of more than five people

In 1988, a military junta took power in Burma after crushing protests. On the day the junta took over, it issued an order banning public gatherings of more than five people. State media reported today that Burma’s new government has ended that 25-year-old ban. According to an Associated Press article,

The order had been applied selectively as a tool to crush dissent against the military regimes that held sway until the elected government of President Thein Sein took office in 2011. … The junta used many catch-all or vaguely defined orders and laws as a means of suppressing dissent, and courts generally handed out stiff sentences, sending thousands of political prisoners into jails around the country. Most have been freed under amnesties promulgated by Thein Sein.

Unjust laws continue to exist. As Henry David Thoreau asked in On Resistance to Civil Government (1849), “shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” Susan B. Anthony answered Thoreau’s question on July 3, 1873, after a judge found her guilty of attempting to vote:

Does your honor suppose that we obeyed the infamous fugitive slave law which forbade to give a cup of cold water to a slave fleeing from his master? I tell you we did not obey it; we fed him and clothed him, and sent him on his way to Canada. So shall we trample all unjust laws under foot.

year-end wrap-up: updates on 2012 posts

NDAA: On January 13, a group of journalists and activists sued President Obama regarding the National Defense Authorization Act of 2012, which Obama signed on December 31, 2011. Four months later, U.S. District Judge Katherine Forrest granted a preliminarily injunction barring enforcement of the NDAA section that allows indefinite detention of anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Another four months passed before Judge Forrest granted a permanent injunction barring enforcement of that section; but the U.S. government appealed, and in October the Second Circuit Court of Appeals granted the government’s motion for a stay of Forrest’s injunction pending a decision on the government’s appeal. Meanwhile, the NDAA of 2013 could further expand the government’s power to hold people in military detention indefinitely.

RNC: The 2012 Republican National Convention protests were surprisingly calm. According to an August 31 New York Times article, no one broke windows, no tear gas filled the air, and only two people were arrested:

The lack of disturbances stood in stark contrast to the last three Republican conventions, when street battles between the police and protesters resulted in numerous arrests and prompted a flurry of court fights about police actions.

The number of protesters at this year’s RNC was smaller than expected due in part to Hurricane Isaac, the storm that caused Republican officials to cancel most proceedings scheduled for the first day of the convention.

Domestic Workers Bill of Rights: California Governor Jerry Brown displayed a lack of empathy predictable only among politicians by vetoing a bill of rights for domestic workers on September 30. Michelle Chen, a contributing editor at In These Times, describes what exactly Brown axed:

The highly anticipated Domestic Workers Bill of Rights would have enacted major protections for tens of thousands of housekeepers, nannies and other caregivers and closed loopholes ignored by federal labor law. It would have extended California’s policies for overtime pay and workers’ compensation, and helped ease in-house workers’ arduous, sometimes-abusive work routines by providing for a set amount of sleep and the ability to cook one’s own food.

Tim DeChristopher: After serving 15 months in prison, Utah climate activist Tim DeChristopher was admitted to a halfway house in Salt Lake City at the end of October. The local First Unitarian Church offered him a job with its social justice ministry. Yet a Bureau of Prisons official said he couldn’t work at the church because the job involved social justice, which was related to DeChristopher’s crime; so he accepted a job at a bookstore instead.

Pussy Riot: Two of the three infamous members of the punk collective Pussy Riot are now serving the rest of their two-year sentences at some of the harshest women’s penal colonies in Russia. (An appeals court released the third woman on bail in October.) They were transported there around October 23. According to an October 29 New York Times post by Masha Gessen, discussing several recent incidents of political repression in Russia,

Anyone can be arrested for legal, peaceful protest — and any one of those arrested can be chosen, at random, to spend days, months or years in prison.

One month later, on November 29, a Moscow court ruled that videos of Pussy Riot performances fell under a law meant to control hate speech. The New York Times reported the following:

The court called for limiting public access to Web sites and blogs displaying the videos. But the ruling is unlikely to cut off access to them, since it applies only to servers in Russia. … Thursday’s ruling cited “psycho-linguistic research” proving that the videos “humiliate various social groups based on their religious beliefs” and contain “hidden calls to rebellion and nonsubmission to authority.”

Jeremy Hammond: After anarchist hacker Jeremy Hammond was put in solitary confinement for five days around the time Hurricane Sandy hit New York City, U.S. District Judge Loretta Preska denied him bail. He has been incarcerated for more than nine months. A release from Anonymous subsequently reported that Judge Preska is married to a client of Stratfor, the very intelligence contractor whose servers Hammond allegedly gained access to, costing the company millions and focusing “worldwide attention on the murky world of private intelligence,” according to a November 2012 Rolling Stone article. Hammond’s attorneys are trying to get Preska removed as the judge in his case, because of her apparent bias.

three protesters challenge constitutionality of new york’s anti-mask law

On August 17, the day Judge Marina Syrova issued her verdict in the Pussy Riot case, Rebekah Schiller, Rachael Weldon, and Esther Robinson protested with approximately 25 others in front of the Russian Consulate on the Upper East Side of Manhattan. As brightly colored balaclavas are the defining symbol of Pussy Riot, Schiller, Weldon, and Robinson wore such masks during their protest. They were arrested for violating New York’s 150-year-old anti-mask law, which makes it illegal for three or more people wearing masks to gather in public unless it’s “in connection with a masquerade party or like entertainment” that complies with any permit regulations. (The law has its origins in a law passed in 1845 to quell an anti-rent insurrection by farmers in the Hudson Valley.)

As of Wednesday, the protesters are challenging the constitutionality of that law. The Second Circuit decided in 2004 that a mask worn by white supremacists did not merit First Amendment protection, because their robes and hoods were sufficient to convey their message. Yet a law may be constitutional as applied to one set of facts but unconstitutional as applied to another. Here, according to a New York Times post,

At the heart of their defense is the contention that the masks were used to express a message that could be effectively conveyed only by wearing that specific type of mask.

ask the ethiopian government to free award-winning journalist eskinder nega

In 2005, Eskinder Nega was incarcerated alongside his wife, fellow journalist Serkalem Fasil. According to a New Yorker article from July of this year,

Both had been arrested and put in Kaliti prison by the Ethiopian authorities for critical reporting of a violent crackdown on protests following disputed parliamentary elections, in which, according to some reports, security forces killed nearly two hundred people. Eskinder and his wife, Serkalem Fasil, a newspaper publisher, were acquitted in 2007, but their publications were banned and the Ethiopian government denied them licenses to launch new newspapers.

As a result, Nega turned to publishing online. He was arrested again in September 2011 for posts questioning the arrests of journalists and dissidents. His posts allegedly violated the same vague antiterrorism law, passed in July 2009, that the subjects of his writing had violated. More than a hundred other Ethiopians were charged under this far-reaching legislation.

In June, Nega and 23 others were found guilty, though 16 of them were in exile. Nega was sentenced to 18 years in prison. (Since 1993, he has founded 4 newspapers that have been shut down by the government and has been detained at least 7 times.) His appeal is scheduled for this Thursday, November 22.

Please ask the Ethiopian government to free Nega, one of the few outspoken journalists who was still active in Ethiopia. Earlier this year, the Ethiopian government released the editor of an independent newspaper and Swedish journalists Johan Persson and Martin Schibbye. According to the Electronic Frontier Foundation, “we know that activist efforts – including international pressure – can be persuasive to the Ethiopian government.”

campaign against proposed sit/lie law in berkeley succeeds

Berkeley voters decided last week not to make it a crime to sit on sidewalks in the city’s commercial districts between 7 a.m. and 10 p.m. The proposal involved citations and a possible maximum sentence of six months in jail. According to one of the measure’s supporters, who spoke on public radio in October, “When I was on Shattuck yesterday, I had to step over a homeless person to get into a gelato store I wanted to go into.”

Wow. That’s cold-hearted.

The ordinance would also have criminalized activists for sitting on commercial district sidewalks between 7 a.m. and 10 p.m. during, for example, unpermitted demonstrations or encampments.

québec’s first female premier promptly repeals controversial anti-protest law

The punitive sections of Special Law 12, also known also Bill 78, officially came off the books today. Adopted as an emergency measure in mid-May to control the student strike in Québec, the Special Law disallowed demonstrations too close to universities, imposed fines on people who stopped students from attending classes, required that police receive demonstration routes 8 hours in advance (if more than 50 people would be participating), and gave police discretion to change those routes for security reasons.

A new version of Montréal’s bylaw P–6 also went into effect in May and has yet to be abrogated. Police have consistently used bylaw P–6 against demonstrators, as opposed to the more widely-publicized Special Law. As CrimethInc. explains,

Bylaw P–6 was first introduced in 2001, and it stipulates that any demonstration can be declared illegal at the discretion of the police if they have reasonable grounds to believe that it will cause “a commotion” or otherwise endanger public order. It also forbids anyone from bringing blunt objects to demos, naming baseball bats as well as hockey sticks—famously used during the 2001 Québec City anti-FTAA demonstrations to knock tear gas canisters back at police.

Though intended to control demonstrations, Special Law 12 revived them due to its unpopularity. (Should we therefore mourn its abrogation?) In any event, political repression does not wax and wane with the passage and repeal of individual anti-protest laws, as shown by how police used bylaw P–6 even when the Special Law was in effect. If bylaw P–6 was also to be repealed, there would still be countless other laws available to police for use against dissidents – for example, widely violated laws that lend themselves to selective enforcement.

federal judge permanently enjoins section of counterterrorism law allowing indefinite detention

On May 16, 2012, U.S. District Judge Katherine Forrest preliminarily enjoined enforcement of the section of the National Defense Authorization Act (NDAA) allowing indefinite detention of anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Yesterday Judge Forrest permanently enjoined enforcement of that section. The plaintiffs in the case are writers, journalists, and activists who, according to Forrest’s order, “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention” pursuant to the section of the law at issue.

The government did not provide Forrest with any assurance that First Amendment-protected activities could not subject an individual to such detention. In addition to limiting the Constitutional right to free speech, Forrest wrote that the section was overly broad:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. … The statute’s vagueness falls short of what due process requires.

Forrest therefore found the section to be “facially unconstitutional,” as “it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.” This was a victory for the plaintiffs – Chris Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, U.S. Day of Rage, Kai Wargalla, and Birgitta Jónsdóttir. Yet the government will almost certainly appeal, having already appealed the temporary injunction.