An Unwelcome NO
Why is the city prosecuting Perry Patterson? And what does it say about free speech in America?
STORY & PHOTOS BY KERA ABRAHAM
She uttered the simplest word of dissent.
"No! No! No! No! No!"
The sound was primal, almost otherworldly in the way it escaped from the mouth of Perry Patterson, a meek middle-aged mother whose number one fear is addressing a crowd. The wail carried across the airplane hangar, turning thousands of heads, but seemed to barely graze the man whose statement she was rejecting: U.S. Vice President Dick Cheney.
It was Sept. 14, 2004, just months before the presidential election, and this was a carefully orchestrated Bush-Cheney campaign rally in a hangar leased by Monaco Coach on Eugene Airport property. Attendees had gotten their free tickets from discriminating volunteers at the Lane County Republican Party headquarters; dissidents were screened out. The VP, dressed cowboy casual and seeming at ease with the crowd, had just finished saying, "Our accomplishments over the last four years have made America stronger, safer and better."
|Dick Cheney speaks to Lane County supporters in September 2004.|
"The word 'no' just came out of my mouth," Patterson recounted later. "I was at that moment visualizing women in different war scenes around the world screaming out for mercy. And I actually felt like my voice didn't come out, because nobody around me was reacting. That's when the men in black came up behind me and took me by the elbows."
A year and a half later, Patterson faces a charge of second-degree criminal trespass, which could carry a penalty of $500 and 30 days in jail. Municipal Court Judge Alan Leiman had moved to dismiss the charge in September 2005, but city prosecutor Mark Haight appealed the ruling. The county circuit court judge will hear the case on Feb. 16 and decide whether to send Patterson to trial.
Both the defending and prosecuting attorneys argue that this case isn't really about Patterson. Haight seems focused on a technical question about free speech rights at private political events. But Patterson's attorney, Lauren Regan of the Civil Liberties Defense Center, describes the case as something bigger and more sinister: "one manifestation of a wave of censorship of political debate" propelled by the Bush administration.
The meekest dissident
Patterson doesn't much like being in this position. She never meant to be a local poster child for free speech — much less a convicted criminal. She was reluctant to grant an interview, agreeing to do so only in front of her attorney, and she declined to be photographed for this article.
"I'm a pretty private person, and I'm also not a very verbal person," said the 55-year-old Patterson, dressed plainly and gazing down at her trembling hands. "So this has all pushed me out of my comfort level."
Patterson is a Democrat, but she was raised in a Republican family in Kansas City. She loves to read, volunteers at the library and studies music therapy for hospice patients. "I'm a very proud mother. That's my favorite career," she said.
In fall 2004, Patterson was upset about the U.S.-led invasion of Iraq, and she suspected that domestic news media weren't giving Americans the whole story. When she saw a notice in The Register-Guard announcing a free upcoming Cheney rally, she saw an opportunity to ask the VP about the possibility of a draft. She was worried about her two sons, then 16 and 20 years old.
Following rally organizers' instructions, Patterson went to the local Republican Party headquarters, filled out a security form and got a ticket from a volunteer. On Sept. 17, 2004, she parked with other attendees on a muddy field and boarded a shuttle for the mile-plus trip to the Monaco hangar.
Patterson didn't see the protesters who stood in the rain with signs and petitions, hoping for her attention. Despite a Supreme Court ruling that demonstrators must be allowed access to their target audience, authorities had shepherded protesters out of sight and earshot of the rally. Veterans for Kerry stood at the south entrance to the airport, and several dozen youth holding anti-war signs paced an intersection several blocks from the rally.
At the hangar, Patterson stood for a half hour in a line in the rain, then passed through security, where Secret Service agents poked through her purse. She finally made it into the hangar, its tall gray walls brightened by Bush-Cheney signs. During the three-hour wait before Cheney's appearance — through a lineup of bubbly Republican pep-talks and piped-in country tunes — Patteron passed out bottles of water and helped nearby parents keep their kids entertained.
"I looked around at the faces and they were so trusting," she said later. "They're just good people doing the best they can, and that's what makes it so tragic to me. They're not getting the news. They're not getting the truth."
When Air Force II finally landed and Cheney made his way to the microphone, the crowd raised a chant in unison: "Four more years!" When Cheney mentioned Bush's opponent, John Kerry, the crowd dutifully mocked, "Flip-flop!" Individual supporters disrupted Cheney at least a half-dozen times, shouting "We love you Cheney!" and "Let's go Bush!" Cheney smirked and sipped his drink.
About five minutes into the speech, Eugene activists Peter Chabarek and Carol Melia took off their jackets to reveal T-shirts with anti-war slogans. "Stop the war!" they shouted. "Bring home the troops!"
The crowd closed in on the activists, drowning out their shouts with one voice: "Four more years!" An ex-Marine, 66-year-old Art Briga of Springfield, put Chabarek in a choke hold and threw him to the ground. Two men in black coats appeared, broke up the scuffle and led Chabarek and Melia out of the hangar, allowing Briga to remain inside. EPD told the protesters to leave or be arrested. They left.
Listen to audio from the event:
"No" 316kb mp3
"Stop The War" 238kb mp3
© 09-17-04 InForm Productions. Amy Pincus Merwin.
"Treat him gently," Cheney said of Chabarek. "Maybe he'll see the light."
It suddenly hit Patterson that she hadn't seen any protesters outside the event and that until that moment, there had been no words or signs opposing Bush or Cheney inside. "It felt eerily un-American," she later recalled.
Then Cheney said that Bush had made America safer.
"I felt my mouth open and the word 'no' came out," she said. "It emotionally felt like if your child ran into the street. It was not conscious, but it had to be done."
"No! No! No! No! No!" A resonant, haunting moan.
Within seconds the crowd drowned out her voice: "Four more years!" Cheney continued his speech, seemingly unfazed.
A pair of men — it's still uncertain who they were — took Patterson by the elbows, led her through the crowd and handed her over to EPD officer Terril Willis, who spoke with her outside. Reconciling Patterson's testimony and Willis' custody report, the conversation went something like this:
Patterson: "Why was I taken out of the building?"
Willis: "What are you trying to prove?"
Patterson: "Nothing. I just had an emotional reaction. I really don't think the world is a safer place under George Bush."
Willis: "Who are you with?"
Patterson: "No one. I came alone."
Willis: "You're going to have to leave or you may be arrested."
Patterson: "I'm fine now. I have a ticket. I want to go back inside and hear the rest of the speech. Can I talk to who's in charge?"
Willis radioed Lieutenant Peter Kerns, who met with Monaco maintenance manager Ken Martz, the designated "person in charge." Kerns asked Martz whether he wanted Patterson to leave the premises. Martz said that he did.
Kerns relayed the message to Willis who, according to Patterson, pointed to an open field and told her to "walk down that road and leave, or be incarcerated."
It was raining, Patterson's car was more than a mile away and the shuttles weren't shuttling. She asked again to speak with the person in charge. Willis repeated that she would have to leave or be arrested. "I guess you'll have to arrest me," she replied.
Willis handcuffed Patterson and read her rights, placing her in the back of the police car. Then he drove her to the parking lot, dropped her off and cited her with criminal trespass.
The city's motive
A year after the rally, Eugene Municipal Court Judge Leiman dismissed Patterson's case. He ruled that, although Monaco as a private company may have lawfully ordered Patterson out of the hangar, Officer Willis had unlawfully ordered Patterson off the adjacent public airport property as well.
The case might have ended there, but city prosecutor Haight appealed the ruling to the Lane County Circuit Court. On Feb. 16, the judge will decide whether Patterson will have to go to trial.
Haight won't discuss the details of the case or say why he is appealing it, but Assistant City Manager Jim Carlson offered an explanation in a Feb. 3 e-mail to City Councilor David Kelly. Carlson wrote that Haight appealed Leiman's decision "because the case involved a significant constitutional question, namely, what are the First Amendment/free speech rights of an individual who goes to a political rally on private property … [A] decision based on a complete record will give the city and law enforcement guidance on how to protect the interests of all parties in future situations."
In other words, the city wanted to establish a precedent on record so that in the future, EPD will know whether it's legal to arrest citizens who protest during political events held on private property.
|Civil LibertiesDefense CenterAttorney Lauren Regan|
Regan finds that reasoning unacceptable, both morally and legally. "Are you kidding me? If the cops need training on how to do their jobs, give them more training. Don't try to convict a woman," she said. "There really is no basis in the law for a prosecutor to appeal a case like this to create a record."
But even Regan is somewhat unsatisfied with Judge Leiman's pre-trial ruling. Leiman dismissed the charge on the technicality that Officer Willis had unlawfully — almost accidentally, it would seem — ordered Patterson off the public land around the Monaco hangar, where she should have had free speech rights. He never challenged Monaco's right to kick Patterson out of the hangar itself, which he viewed as Monaco's private property.
Regan argues that the Monaco hangar, sitting on public land and opened to citizens at taxpayers' expense, was a public forum at the time of Patterson's arrest. In that case, the question would become: Did EPD violate Patterson's First Amendment rights by forcing her out? Regan filed a tort claim notice in March 2005, notifying the city of Patterson's intent to sue for damages.
Here's where the facts get murky. Monaco owns the hangar and rents the land beneath it from the city of Eugene. The lease contract stipulates that Monaco may only use the hangar to store airplanes, unless the airport manager grants written permission to use it for another purpose. According to Airport Contract Administrator Carrie Martin, the airport manager did not give Monaco written permission to host the Cheney rally on Sept. 17, 2004, but did offer verbal permission. Judge Leiman assumed that by sending Eugene police to help with the event, the city implicitly gave the event its nod of approval.
Regan, however, argues that the rally was a public forum of political nature, where free expression would have been expected. The tickets proclaimed, "Eugene Welcomes Vice-President Dick Cheney," and rally-goers were never told that it was a private event.
"If it looks like a public forum and it quacks like a public forum, it is a public forum — even if it's cloaked in the guise of private property," Regan said. "Once Monaco opened the hangar up to the public for this public event, in our argument, they relinquished the right to call it private property, and they couldn't exclude people based on their political beliefs."
Regan notes that taxpayers footed most of the rally's bill. The RNC may have rented the hangar from Monaco, but federal taxes covered Air Force II and the Secret Service. Another $12,600 in local tax dollars went to staffing the rally with Eugene police. As Patterson's case drags on, city taxpayers are also funding Haight's time and municipal court costs.
On the other hand, the First Amendment guarantees people's right to assemble privately, and it seems that rally organizers went to great lengths to keep the event exclusive to Republican supporters. Tickets were available only at Republican headquarters, and professed Democrats were denied tickets. By that reasoning, Judge Leiman viewed the 3,000 rally-goers as guests invited to a private event.
Monaco Coach CEO Kay Toolson has contributed $58,000 to the Republican Party and its candidates since 2001, compared with $5,500 to Democratic candidates. If Toolson had thrown a big VIP party for GOP faithfuls at any private property – his house, for example – he would have had the right to send Patterson packing if she so much as let out a Democratic squeak.
Men in black
If we assume that Monaco had private property rights in the hangar during the rally, the legal nit-picking zeroes in on the particulars of how Patterson was kicked out, and who did the kicking. Since she wasn't threatening anyone and she dissented in a voice no louder than other individuals' supportive whoops, only Monaco representatives, as private property owners, had the right to ask her to leave. But according to Willis' custody report, Eugene police only contacted Monaco's "person in charge" after Patterson had been taken outside.
Patterson testified that "men in black" led her out of the hangar. As Judge Leiman noted in his ruling, it's not clear who those men were. Haight assumed that they were Secret Service agents, but provided no evidence of that at the pre-trial hearing. Oregon Secret Service Director Ron Wampole, acknowledging that his agents provided security for the event, denied that they played any role in ejecting Patterson.
EPD officer Willis wrote in his custody report that "officers" removed Patterson from the hangar, and that Eugene police were staged throughout the crowd. Monaco spokesman Craig Wanichek said that "Eugene police came and escorted her out." But EPD spokeswoman Pam Olshanski said she "was not able to clarify" whether the men who removed Patterson were Eugene police officers.
State law allows police officers to remove citizens who disrupt a political speech, but the Oregon Constitution and the federal Bill of Rights forbid discrimination on the basis of content of expression. Without explicit permission from a Monaco rep, any public authority at the event — whether Secret Service or EPD — would be required to treat Patterson the same way they treated other non-violent rally-goers who shouted out, regardless of what they said.
Throughout Cheney's speech, supportive individuals in the crowd regularly disrupted the vice president with shouts of "We love you Cheney!" and "Go Bush!" Cheney supporter Art Briga was allowed to remain at the rally after putting protester Peter Chabarek in a choke hold. By removing Patterson after she said "No" but letting the equally disruptive Cheney supporters remain in the hangar, the elusive "men in black" may have failed the viewpoint neutrality test.
Oregon ACLU Executive Officer David Fidanque says that the Bush administration has set a new standard in political censorship. During the 2004 election season, the Bush-Cheney campaign staged many of its rallies on private property and relegated protesters to distant "free speech zones," essentially stripping attendees of their First Amendment rights. In stark contrast to Kerry-Edwards rallies, where Republicans as well as Democrats were permitted to hold signs and express their beliefs, Bush-Cheney rallies often excluded or ejected dissidents, sometimes slapping them with criminal charges (see sidebar).
"It's part of a long-term trend of hyper-management of political appearances by the president and vice president," Fidanque said. "I think it's an attempt by political handlers to make sure that the news is sanitized to reflect the message that they want to put out, which means that the public doesn't get exposed to controversy when controversy exists. But to the extent that the events are held in [private] places, they can probably get away with that."
Regan is preoccupied with another threat to free speech: a proposed new provision of the PATRIOT Act, which Congress will consider for re-authorization on March 10. Section 602 would make protesting or holding a protest sign at any "national security event" a felony. If that provision were applied to Patterson, her "no" would become a federal crime, punishable by up to a year in prison.
Section 602, as well as other restrictive aspects of the PATRIOT Act, echo Attorney General John Ashcroft's October 2001 warning: "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists."
Regan says that Patterson's arrest and similar incidents across the nation have a "chilling" effect on free speech, discouraging citizens from speaking out against the government. "By arresting a mom and a housewife, they hope to send a message to other citizens, especially in what's known as a fairly liberal community: 'Don't mess with us,'" Regan said.
Chilling speech is illegal under the First Amendment, but it's happened before in America. The Sedition Act of 1918 prohibited citizens from using "disloyal, profane, scurrilous, or abusive language" about the U.S. government during wartime. That act was repealed in 1921, but not before putting socialist Eugene Debs in prison for three years.
"We are on a slippery slope of losing our freedoms, and since most politicians and most of the media are acting as if they are under a gag rule, it's up to each individual to research and speak up," Patterson said. "If this could happen to someone like me, what's going to happen to someone who's not as reserved as I am?" ew
Examined closely, Patterson's case gets obscured in the who and where and how exactly. But zoom out, Regan argues, and it fits into a larger pattern of crackdowns against protesters at political events featuring President Bush or Vice President Cheney.
• Most recently, capitol police arrested anti-war leader Cindy Sheehan before the State of the Union Address on Jan. 31 for wearing a T-shirt that said, "2245 Dead. How Many More?" Capitol police then removed the wife of a Republican representative who wore a T-shirt that said "Support the Troops — Defending Our Freedom," but they did not arrest her. On Feb. 1, the capitol police chief dropped Sheehan's unlawful conduct charge and apologized to both women, calling their removals a mistake.
• In another case of T-shirt rebellion, three Medford teachers were booted from a Bush campaign event in October 2004 for wearing shirts that said, "Protect our civil liberties." They were threatened with arrest but not charged.
• At the Republican National Committee convention in New York City in early September 2004 — just weeks before the Cheney rally in Eugene — NYC police arrested more than 1800 protesters, shepherding them onto a pier out of sight and earshot of convention-goers. Police later dropped charges for more than 90 percent of the protesters.
• In a case strikingly similar to Patterson's, anti-war activist Brett Bursey was arrested in 2002 for refusing to leave a "restricted area" during a Republican-sponsored rally for President Bush in an airport hangar in Columbia, South Carolina. Standing in a crowd of supporters with signs welcoming Bush, Bursey held a sign reading, "No More War for Oil." When Bursey refused to relocate to a designated "free speech zone" a half-mile away, he was arrested for trespassing. That charge was later dropped, but the feds indicted Bursey for threatening the president. He was convicted of that charge and fined $500. The Supreme Court refused to hear his appeal.
• In Jacksonville, Ore., police pepper-sprayed people on public sidewalks who protested President Bush's visit in October 2004. The ACLU is preparing a lawsuit about that incident, and has filed several related suits challenging Secret Service actions at Bush-Cheney rallies across the nation.
"I think that recent years have brought with them a terrible loss of the right to engage in political protest in the United States," said Center for Constitutional Rights Director Bill Goodman. "This is an administration that does not want to hear disagreement. They start by prohibiting protesters from attending these events, and then by arresting those who do protest, and if they have their way they will ban protest completely."