Two months before the start of the major-party nominating conventions, litigation over the arrangements for protesters in Denver and St. Paul already is in full swing.
Led by the American Civil Liberties Union chapters in Colorado and Minnesota, the goal is to essentially avoid a repeat of the protest pen created outside what was then called the FleetCenter during the 2004 Democratic National Convention in Boston. That designated demonstration zone built largely under elevated railroad tracks, surrounded by concrete barriers, wire fencing and mesh netting and topped with razor wire was described by a federal judge as creating the overall impression … of an internment camp.
The judge said the pen was an offense to the spirit of the First Amendment, but he declined a motion by protesters to force the city of Boston to redesign it because there was no reasonable alternative. The U.S. Court of Appeals for the 1st Circuit upheld that ruling, and the pen derisively referred to as Gitmo by protesters was largely unused during the convention.
The protesters had not seen the pen until the week before the convention, at which point it was too late for the judge to offer relief.
With that background in mind, protest groups filed suits earlier this year to force Denver and St. Paul to release their plans for design of protest areas as early as possible.
In Denver, the ACLU and a handful of protest groups, including CODEPINK and a coalition called Re-create 68, filed suit May 2 asking a judge to force the city to release plans for the parade route and to rule on permit applications that protest groups had already filed. The city responded by releasing a proposed parade route June 12, but the citys announcement acknowledged that the route was incomplete, ending several blocks from the Pepsi Center where the Democratic National Convention will be held Aug. 25-28. Details of the entry from the parade route to a demonstration zone in the parking lot of the Pepsi Center are still being worked out, the city said.
Mark Silverstein, legal director of the Colorado Chapter of the ACLU, said those last details are critical for determining whether the citys plan protects the protesters First Amendment rights.
While courts have upheld the right of cities to regulate the time and place of protests, Silverstein said the critical factor will be whether protesters will be seen and heard by the convention delegates as they enter the hall. Until they see the citys plans, Silverstein said, they cant determine whether those conditions are being met.
Silverstein said that in light of the Boston case, it is urgent that protesters have time to review the plans and pursue remedies in the district court, not to mention time for an expedited appeal to the 10th Circuit if rulings go against them in the district court. The court has scheduled hearings throughout July, and Silverstein said, I would hope that everybody with any influence on the process is saying to the city and the Secret Service, Dont make this another Boston. Denver can do better.
Denver has one advantage that St. Paul does not have for the Republican Convention the following week. The Pepsi Center sits on a fairly open patch of land, surrounded by large, flat parking surfaces; the Xcel Energy Center where the Republican convention will be held is much more tightly hemmed in by major roads, with little open space around it.
Bruce Nestor, president of the Minnesota chapter of the National Lawyers Guild, has filed lawsuits against St. Paul on behalf of two protest groups, the Coalition to March on the RNC and Stop the War and the Poor Peoples Economic Human Rights Campaign. The Coalition to March is challenging a permit granted by the city, arguing that the designated route is too small to accommodate the masses they hope to attract and the timing of the permit is inadequate because it ends when the delegates are scheduled to enter the arena. We dont want to march by an empty building, Nestor said
The Poor Peoples suit asks for an injunction forcing the city to issue a permit for that groups march, so that the group can prepare for the event, or challenge the citys decision if necessary, Nestor said.
Nestor said that a fundamental tenet of the protesters free-speech right is the ability to be seen and heard by the delegates during the convention. There is a collective aspect to people physically coming together and directing a message about a certain subject at a certain target, he said.
But St. Paul City Attorney John Choi said the mayor and police chief are making extraordinary efforts to make sure protesters can be seen and heard, and, I think we have really accommodated more than any past convention.
Choi said the parade route the city approved is actually unprecedented access to the arena. … It is within the shadows of the building. The timing of the march ending at 2 p.m., when delegates are scheduled to arrive was included in the groups original permit request, Choi said.
Everyones going to get a permit, Choi said. Everyones going to be able to march on the Republican National Convention that should not be in doubt. The reality is that they may not get exactly the route that they want and they may not get the time that they want because of security concerns or even the rights of other groups to march or rally.
But, Choi said, In a lot of ways the city feels like weve accommodated a lot of their concerns. Sometimes it boggles my mind as to exactly what it is that they are wanting.