Patricia Nell Warren

The Choi Trial: Latest Attack on Peaceful Protest

Filed By Patricia Nell Warren | September 01, 2011 7:00 PM | comments

Filed in: Politics, The Movement
Tags: civil disobedience, Dan Choi, First Amendment, peaceful protest, Rep. Luis Gutierrez, right to assemble, Vieques

There is no doubt in my mind that Dan Choi is in the government's crosshairs for extra-harsh treatment as a protester. I say "right on" to his defense attorneys who are trying to make this point.

Shame on President Obama for allowing federal Protestors cheer at the National Equality Marchauthorities to go forward with this latest attack on America's constitutional right to peaceful protest. Our African-American President should know better, considering all the pain and blood of African-American protest - sit-ins, marches, being beaten and fire-hosed and even murdered - a legacy of black protest that helped get him to the White House.

After all, it's right in the First Amendment about "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

I call it the "latest attack" because Choi's trial is riding a monster trend that began as far back as the '80s and '90s. This was when post-Reagan conservative legislators began quietly changing state and federal criminal code so they could ramp up the penalties for peaceful protest. Before that, civil disobedience used to be prosecuted as a minor misdemeanor, and veteran activists were proud of their long lists of arrests. But these changes in the law aimed to ensure that the Sixties era of massive protest - especially anti-war protest - would never be repeated. Conservative Democrats went along with Republicans on this.

Today, peaceful protest is typically slammed as a serious misdemeanor or a felony charge - preferably a whole stack of charges, along with excessive bail. An activist's life can be ruined by the first arrest.

Make no mistake - protest is going away as an American tool for change.

I've been writing about this deadly trend for years, and was often baffled by the LGBT public's lack of interest in the issue. After all, we've got as big a stake as anybody in the right to "peacefully assemble." Yet most of us stood by silently while (for instance) the fiery ACT UP activism of the 1980s was gradually smothered by prosecutorial overkill.

Now a gay man in uniform is standing in front of those legal bullets and will spend six months in federal prison if convicted. I'm glad to see that more and more LGBT people are finally waking up to this issue.

The big point about Dan Choi's trial is not that he's gay or protesting DADT. It's that he is a high-profile protester. So the government aims to make a high-profile example of him, in hopes of discouraging other types of high-profile protest. And that includes any high-profile protest over unemployment, home foreclosures, corporate corruption, GM foods, immigration, mis-use of anti-terrorist legislation against innocent American citizens, the Afghanistan and Iraq wars or any other issue that the government doesn't want to hear about.

The 12 activists who were arrested with Choi have taken another option. They pled guilty and will escape jail time if they are not arrested again in the next four months. This option, too, is part of law-enforcement strategy. Government wants to ensure your future absence from the protester arena in every way possible.

Indeed, Americans' capacity to ignore government brutality towards protesters has gone to some extremes. In 2001, a U.S. Congressman (Rep. Luis Gutierrez, D-Illinois) was beaten by military police during a peaceful protest at the U.S. Navy's bombing range in Vieques, Puerto Rico and the major media ignored the story. So did many human-rights organizations. Afterwards the Hispanic caucus in Congress bravely held a hearing, and heard evidence about Gutierrez's beating, and demanded a DOJ investigation. But the DOJ did nothing. The Democratic Party did nothing. Today this shocking incident is almost completely forgotten, but its after-effects have shaken the country deeply.

If a member of Congress can be publicly dragged through the prosecutorial dirt this way, and if most Americans are capable of ignoring this kind of spectacle, what hope is there for Dan Choi? Or for anybody else who dares to hit the street with a sign and a grievance?

No matter how "peaceful' you are, law enforcement is now equipped to find some flimsy pretext to prosecute you to the max. And the major media are now well-trained - they jibe at nonviolent protesters and call them "lawbreakers" who should be punished. This jibing has gone a long way towards making the public unsympathetic towards protesters.

Here in this link, as a backgrounder, is a piece on this subject that I wrote for Bilerico in 2008. It gives more details on how the new harsh prosecution works.

At the time I wrote that piece, I was hopeful that Obama would make some courageous move to protect the right to protest. But our President is now on record with his appalling silence on the Choi trial. In the absence of Presidential leadership, the American people need to start paying attention to this dark trend - and to send their own message to Congress and the White House.

This key constitutional right should not be made "unavailable" to you and me by the threat of harsh punishment.


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Thank you so much for writing, Patricia.

The terrible mistake that the authorities are making is that peaceful protest is not only an air of grievances -- it is a way for the public to vent its steam.

If they want to see what happens in countries that have no steam vents, we have seen classic examples earlier this year: Egypt, Libya, and even London.

Do they think we will accept a life where all of us, black and white alike, are slaves?

John R. Selig | September 2, 2011 4:00 PM

I am deeply disheartened by the lack of protests by the left in this country. Had the problems of today been faced by the baby-boom generation in the late 60s and early 70s people would have poured into the streets. Today people mainly ignore what is going on. Sure, some of write posts on blogs, sign petitions and send emails. The few that hit the streets face felony convictions and for the most part their supporters sit quietly by when they are arrested and taken to court.

Thanks for this important post Patricia. The fact that mine is only the second comment after it has been up for 20 hours shows how complacent we have become. Dan Choi is a hero and he both needs and deserves our support. We need to let the government know that making an example of his is unacceptable!

Thomas Jefferson said, "The will of the people is the only legitimate foundation of any government, and to protect its free expression should be our first object." It's brutally clear that our elected "representatives" have long forgotten that, and now actively pursue its opposite.

But is marching in the streets as effective as our nostalgia would make it? I don't think so. The anti-war protests of the 70's and the civil rights protests of the 60's had very little effect until the violence against the protesters was made public in the media. Television coverage of Army and National Guard troops beating and shooting protesters both galvanized the protest movements, AND created a general public backlash against the administrations that authorized the violence. Which proves the statement from Benjamin Franklin, "Justice will not be served until those who are unaffected are as outraged as those who are."

I believe if we're to be truly effective in taking our nation back from the corporate puppets and the theocratic fascists we must find a way to bring the outrage we feel to the mass of the American populace. We then have to aim that outrage at the levers of power - those within the government that can truly effect the changes necessary to restore the freedoms our founding fathers wrote into the Constitution. Marching in the streets is but one tool, there are many at our disposal and we must use them all.

I agree with you that nonviolent protest is but one of many tools for change. Voting, and lobbying, and public service, and honest media coverage, are also important. I don't say that protest is the ONLY tool. But it's a mistake to minimize its importance. Starting with Gandhi, who successfully used it to get the British out of India. You can't deny that black protest had a key role in bringing about change for African Americans. And yes, protest did ultimately play an important part in getting us out of Vietnam. If public protest weren't important, the conservatives in both parties wouldn't have gone to such lengths to stifle it.

Well said, John. I agree with you 110 percent.

Paige Listerud | September 3, 2011 1:37 PM

Patricia, your articles are vital antidotes to apathy and forgetfulness. A couple of years ago, I even heard a newscaster state that protest in the streets was something that the French do, but was not particularly American. Much more needs to be done than repealing the Patriot Act but I'd feel a lot more relieved if people just showed an interest in doing that.

Attacks on protesters by the legal system are also part of a long tradition in law enforcement, however, and I think a history on that subject needs to be taught in every high school throughout the land. Your free speech is not as free as you think it is--it is perpetually under attack.

Reminds me of the story when Ralph Waldo Emerson found out Henry David Thoreau was jailed for civil disobedience (I think it was for refusal to pay a tax):

After locating the jailhouse, Emerson walks up to Thoreau's cell and starts off, "Henry, what are you doing in jail?"

Thoreau responds, "What are you doing out there?"