PROTEST BAR SHRINKS
ANTI-WAR ACTIVISTS FACE CHANGED LEGAL TERRAIN
LEGAL TIMES WEEK
by Tom Watson
January 28, 1991
Section 7.96 of the Code of Federal Regulations may not sound
much like an instrument of oppression. But to protesters of the
Persian Gulf war and their lawyers in Washington, It is the next
brick in the wall the government is building to obstruct domestic
The National Park Service wants to amend Section 7.96 to stop
demonstrators and others from leaving bundles of bedding,
clothing, and household items in Washington's historic Lafayette
Park. The Service argues that protesters have helped turn a
scenic tourist attraction -- just across Pennsylvania Avenue from
the White House -- into an unsightly mess.
To combat the problem, the Park Service has proposed limiting
each person's property to a patch of the park no greater than
three cubic feet.
But that plan strikes some lawyers as a barely veiled assault on
demonstrators' rights to petition the government from the
nation's premier stage for displays of dissent.
"This is just another way of trying to clear people out of this
important area,: says Sebastian Graber, a solo practitioner based
in Madison County, Va., who has long warred against government
restrictions on political speech.
Welcome to the changed legal landscape of protest, circa 1991.
Gone are the inflamed clashes over the core components of free
speech that marked anti-war protests in the Vietnam era and that
served as the grounds for decision in court case after court
case. The major questions of content seem to be settled. What
debate remains in these troubled days of Operation Desert Storm
is over form -- not over what protesters can say, but how, when,
and where they can say it.
To Graber and his colleagues in the so-called protest bar, it's
an insidious debate. The government lost most of its challenges
to political demonstrations in the 1960's and early 1970's, they
point out. Only in the last decade, they argue, has the
government assembled a solid winning streak in placing
restrictions on dissent -- by strategically focusing on the time,
place, and manner of protest, rather than the substance of
"The government is going through the back door to do what it
couldn't do through the front door." says one veteran member of
the protest bar.
But government officials, past and present, defend such
restrictions -- limiting the size of signs, for example, or
labeling as off-limits a certain stretch of the White House
"Our job is to allow as wide latitude as possible for the
expression of views," says Jay Stephens, the U.S. attorney for
the District of Columbia. "But at the same time, we have to
protect citizens law-enforcement officers, and public property."
Joseph diGenova, Stephens' predecessor as U.S. attorney here,
adds that the Supreme Court has sanctioned the various
regulations that have triggered the protest bar's complaint.
"The court is the appropriate arbiter of these questions, and the
court, not the government has decided that reasonable limits on
certain public areas are acceptable," says diGenova, now a
partner in the D.C. office of Chicago's Hopkins & Sutter.
DiGenova argues further that those limits have done little if
anything to erode protesters' First Amendment rights to free
speech and free assembly.
"The bottom line is that the Mall, the front of the White House,
and Lafayette Park are all filled with people protesting
America's war policy, " diGenova says. "I see vigorous, healthy
protest going on, as it should be, I don't understand what the
Even some of the protest bar's allies suggest that it is hard to
get too worked up about the technical parameters placed on
today's political debate.
"We have not been happy with the regulations that have been
imposed and upheld," says Arthur Spitzer, legal director of the
American Civil Liberties Union of the National Capital Area, who
has challenged some of those regulations in court.
"But surely I would agree that the right to have a crowd of
20,000 demonstrators in Lafayette Park is still intact -- and is
more important than the right to have three signs per person
instead of two." Spitzer adds.
Protest lawyers are nonetheless determined to fight the tide they
say began turning against them back in the early 1980's.
At that time, a man named William Thomas decided to launch a 24-
hour vigil in front of the White House to encourage disarmament.
Thomas drew a crowd - and concerns from the National Park Service
that the small gatherings posed aesthetic and security problems.
After another protester threatened to blow up the Washington
monument, the Park Service, in conjunction with the Secret
Service, undertook a major overhaul of regulations governing park
property. Among the regulations, upheld on appeal, were those
that made it an offense punishable by fines and/or jail time to
stand still along a specific 60-foot stretch on the sidewalk in
front of the White House or to leave signs unattended in the
Thus began a series of government victories that culminated in a
1984 Supreme Court case, Clark v. Community for Creative Non-
Violence. In that case, CCNV leaders challenged the Reagan
administration's ban on camping in Lafayette Park, arguing that
it interfered with their chosen method of protesting the
government's policies toward the homeless. The court was not
convinced and affirmed the ban.
The "time, place, and manner" standard, which dates to Cox v. New
Hampshire, a 1941 Supreme Court decision regarding the right of
religious demonstration, continues to haunt protesters as they
make their case against the war in the Persian Gulf.
"It lessens the impact of the demonstration," says Lynne
Bernabel, a former Vietnam War protester whose D.C. firm,
Bernabel & Katz, offers criminal defense assistance to
demonstrators. "The only real way any demonstration reaches the
public these days is through the mass media," explains Bernabel,
who was among the lawyers last week gearing up to provide legal
assistance to the anti-war protesters in the Jan. 26
demonstration in Washington.
"To the extent that you restrict the demonstration -- the size of
the crowd that can collect, the type of peaceful protest, and
symbolic action, and you're limiting the effectiveness with which
protesters can get their message through, "Bernabel adds.
The resulting welter of regulations, others argue, leaves
protesters fearing they need to consult with legal counsel before
exercising even the most basic First Amendment rights.
"Before, you could feel free to go down to the White House, where
the president lives, and petition for redress of your grievance,"
says Graber. "Well, now you can't feel free .... There are so
many rules and regulations, you have to have a lawyer at your
side just to determine what you can and cannot do."
But if protesters need lawyers more than ever, they do not have
an especially large field to choose from. This is one of the few
areas of the law that has expanded without causing a
corresponding expansion in the number of lawyers lining up to
take advantage of the change.
The protest bar is a small but intensely dedicated network,
composed of aging Vietnam-era activists and their heirs, most of
whom cut their eyeteeth on demonstrations involving U.S. policy
in Central America, the environment and abortion rights.
Veteran members say their ranks have shrunk significantly since
"We just don't have the number of troops we once had," says
William Kunstler of New York's Center for Constitutional Rights,
whose place in the annals of protest history was cemented when he
represented the Chicago 7, charged with conspiring to incite a
riot at the 1968 Democratic National Convention.
"In the 60's we had so many lawyers and law students who got into
the whole aspect of supporting demonstrators, their civil rights
and civil liberties, "continues Kunstler. "But we've come
through the Reagan years, and a lot of our people who might have
been into this type of work have been weaned away."
Many of those still practicing in the protest bar stay in contact
via the National Lawyers Guild, an alliance of left-wing lawyers
whose Mass Defense Committee gears up members for volunteer work
virtually every time major political demonstrations are held.
Since hostilities broke out in the Persian Gulf, the Lawyers
Guild has been on full alert. Its leaders established a toll-
free telephone line for military men and women interested in
finding out more about how to file for status as conscientious
objectors. Armbands were manufactured; cards providing advice on
how to handle arrest were printed up. And guild lawyers have
mobilized for major anti-war demonstrations from San Francisco
and Seattle to Washington and New York, recruiting law students
to serve as legal observers -- bearing witness to arrests to aid
defense efforts down the road -- and enlisting criminal defense
lawyers whenever possible to assist in arraignment and other
Most Protesters who get arrested require limited legal
assistance. Such crimes as blocking traffic or engaging in
disorderly conduct are typically considered misdemeanors and are
punished by citations the equivalent of traffic tickets.
Still, more extreme forms of protest require more vigorous legal
help. Earlier this month, a group of people were arrested for
slipping over the White House fence and dumping blood into a
fountain. The group faces possible felony indictments for
destruction of property and criminal trespassing.
Furthermore, some fear that such dramatic action could beget
stiffer sentences than those received during the Vietnam war --
because of the more conservative complexion of the federal courts
and mandatory sentencing requirements.
Thus far, however, the Persian Gulf conflict has been a
relatively clam one for members of the protest bar. Lawyers for
demonstrators and their counterparts in the law-enforcement
community both say that their relationships is marked more by
mutual cooperation than by the animosity that characterized the
debate of U.S. involvement in Vietnam.
"The more police know, the more comfortable they feel," says
Denise Wiktor, a D.C. solo practitioner who represents
U.S. Attorney Stephens agrees.
"Overall there is an effort to provide a more cooperative
environment to avoid unnecessary confrontation and hostility."
Stephens says, adding that his office makes a special effort to
coordinate local law-enforcement activities aimed at protecting
both political speech and public order.
Contributing to the sense of calm and collegiality is the fact
that, with some exception, those protesting U.S. efforts against
Iraq are not as virulently anti-American as some of their
But no one suggests that the protest bar has mellowed too much
since its Vietnam heyday. Its members say passions likely will
flare as war in the Persian Gulf drags on and takes its toll on
public opinion back home.
"There's no flesh and blood on the war yet from the American
point of view," says one former Vietnam protester well versed in
the law protecting protesters. "But wait until the bodies start
coming home. Then, you might see the temperament and the tactics
of the demonstrators and their lawyers change."
Case Listing -- Proposition One ---- Peace Park