WASHINGTON - The American Civil Liberties Union national office today filed a federal lawsuit against a former high-level White House staffer for enacting a policy that unlawfully excluded individuals perceived to be critical of the administration from public events where President Bush was present. The policy is laid out in an October 2002 "Presidential Advance Manual" obtained by the ACLU.

"The White House has gone too far in its attempt to make dissent invisible," said Chris Hansen, a senior ACLU attorney who is lead counsel in this case. "When taxpayers foot the bill for a public event, the president does not have the right to use a partisan litmus test to stack the audience with his political supporters."

The ACLU filed today's lawsuit after obtaining a heavily redacted version of the Presidential Advance Manual from the Justice Department. This manual is the Bush administration's guide for planning presidential events around the country, and it repeatedly instructs organizers about "the best method for preventing demonstrators," "deterring potential protestors from attending events," "designat[ing] a protest area . . . preferably not in view of the event site or motorcade route," and the like.

The ACLU said it is clear from the manual that the aim of the White House policy is to keep people who are critical of the president away from him and from the news media. According to the manual, "if it is determined that the media will not see or hear" demonstrators, then event staff can ignore them. The manual's guidelines are designed for use at all presidential events, not just fundraisers or political rallies. However, the ACLU noted that there are stricter constitutional guidelines for taxpayer-funded events than for privately- or politically-funded events.

"When the president attends a public event, the First Amendment does not allow him to speak or listen only to those who agree with him," said Arthur Spitzer, Legal Director of the ACLU of the National Capital Area and co-counsel in the lawsuit. "Public places cannot be 'cleansed' of all dissent just to make the president look popular on television."

The ACLU is suing Gregory Jenkins, former Director of the White House Office of Presidential Advance and a Deputy Assistant to President Bush, for setting the policy in the manual. Jenkins' policies have led to the removal and, in some cases, arrest of innocent people from taxpayer-funded events. The lawsuit names as plaintiffs Jeff and Nicole Rank, who were arrested at a Fourth of July presidential appearance at the West Virginia State Capitol because they were wearing t-shirts critical of the president, and Alex Young and Leslie Weise, Denver residents who were thrown out of a town hall meeting with President Bush because they had an anti-war bumper sticker on their car.

The Ranks had tickets to attend the July 4, 2004 event, but drew attention when they removed their outer garments to display t-shirts bearing the international "no" symbol (a circle with a diagonal line across it) superimposed over the word "Bush." Although other people in the audience were allowed to wear pro-Bush paraphernalia, White House event staff demanded that the Ranks remove or cover their t-shirts. When the Ranks refused, the White House staffers instructed local police to arrest the couple, causing them to be removed from the Capitol grounds in handcuffs, jailed and charged with trespassing. Ms. Rank was also temporarily suspended from her work with the Federal Emergency Management Agency. City officials later apologized for their part in the arrest when they realized they'd been used as political operatives by the White House.

Similarly, Weise and Young had tickets to attend the March 21, 2005 Denver town hall on Social Security, but they were singled out after a staffer was informed that Weise had a bumper sticker on her car that read, "No More Blood for Oil." Weise was stopped upon entering the event and warned that she had been "ID'd," but was allowed to enter. However, shortly after reaching their seats, Weise and Young were forcibly removed from the event by a staffer who later admitted that he was acting under orders from White House officials.

"Freedom of speech is the cornerstone of the American way of life and public forums are the place where this matters most. Peaceful expression, whatever the format, is vital to all of us. We believe this case is important for protecting the rights of all Americans," Weise and Young said in a joint statement.

Mr. Rank added, "The free exchange of ideas is essential to democracy, and when government suppresses one side of that exchange it puts democracy in peril."

The ACLU lawsuit also cites other occasions throughout the country in which individuals were excluded from presidential events because of their political views. For example, in LaCrosse, Wisconsin, ticket holders in line to hear the president speak had to unbutton their shirts before they could get inside. One individual was wearing a t-shirt critical of the president, and was ejected by security officials. In Fargo, North Dakota, several dozen individuals were placed on a "do not admit list" of those forbidden to attend a presidential event; most of the individuals on the list belonged to a liberal organization, and some had written letters to the editor opposing the president's policies. And in Tucson, Arizona, a student was barred from a presidential forum on Social Security because he was wearing a Young Democrats t-shirt.

Today's lawsuit was filed in U.S. District Court for the District of Columbia.

The ACLU previously filed lawsuits in West Virginia and Colorado on behalf of the Ranks and Weise and Young, respectively. Both cases are pending in federal district court. Another ACLU lawsuit charging mistreatment of anti-Bush demonstrators at a presidential appearance is pending in federal district court in Oregon (Moss v. United States Secret Service).

The Denver case is Weise v. Jenkins and is in U.S. District Court for the District of Colorado. In addition to Hansen and Silverstein, attorneys in the case are Catherine Crump of the national ACLU and Martha Tierney and Jerremy Ramp of Denver-based law firm Kelly Haglund Garnsey & Kahn, who are acting as ACLU of Colorado cooperating attorneys.

Weise and Young have created their own web site with background information on the incident at: www.denverthree.org. 

In a lawsuit filed in federal court in Denver today, ACLU lawyers alleged that a Colorado Springs police officer used his heavy police-issued metal flashlight to administer a vicious beating to the ACLU’s client, Delvikio Faulkner, a young African American who was riding with two other young men in a car that was initially stopped for a minor traffic violation.

According to the suit, Officer D.K. Hardy delivered six blows from the flashlight, including three to Mr. Faulkner’s head. The blows continued long after it was clear that Mr. Faulkner was not resisting. Faulkner required hospital treatment, including eight staples to close the head wounds.

“A blow to the head from a police flashlight poses a substantial risk of serious bodily injury and even death,” said Mark Silverstein, ACLU Legal Director. “It is the equivalent of deadly force. Police officers are not justified in clubbing a suspect in the head with a flashlight unless they would also be justified in pulling out a gun and shooting, which certainly was not the case here.”

“According to police reports, Mr. Faulkner was suspected of nothing more than failing to provide his correct name when asked to identify himself,” said Reid Neureiter, who, along with his colleagues, Elizabeth Harris and Kathryn Reilly of the Jacobs Chase firm in Denver, is litigating the case as an ACLU Cooperating Attorney. “He was not armed and Officer Hardy’s partner acknowledged that Mr. Faulkner posed no physical threat whatsoever. Even if Mr. Faulkner initially pulled away when he was placed under arrest, as Officer Hardy believed, the officer responded with grossly excessive and disproportionate force, and he continued beating Mr. Faulkner even after it was clear that he was compliant.”

The incident, which took place exactly two years ago, prompted the Colorado Springs Police Department to conduct an internal investigation into Hardy’s action. When the ACLU asked the City for documents created in the course of that investigation, the City refused. Colorado Springs then sued the ACLU and asked the state district court to declare that the police department’s internal affairs file was not subject to disclosure under the Colorado open records laws. The ACLU won that suit earlier this year, and it obtained the full investigative file on the beating of Mr. Faulkner.

“The investigative file shows that Hardy’s partner, Jackson Andrews, witnessed the incident and believed that Hardy’s beating of Faulkner was unnecessary, uncalled-for, and excessive,” Silverstein said. Although the investigators recommended that Hardy be disciplined, Hardy appealed. Before the appeal could be decided, however, Hardy was fired for his role in a different incident.

“The Colorado Springs Police Department deserves credit for recognizing that Officer Hardy was out of line,” Silverstein said. “Although Hardy is no longer working as a Colorado Springs police officer, our client has not received any compensation for his serious injuries or for the egregious violation of his constitutional rights. This lawsuit seeks that compensation.”

According to Silverstein, the internal affairs file also revealed that Officer Hardy’s unit was assigned that night to engage in deliberately aggressive and provocative policing tactics. “The officers were told to stop as many cars as they could and to ‘toss’ the cars, meaning they should conduct searches and rummage through the passengers’ belongings,” Silverstein said. “This assignment is a recipe for harassment, pretext stops, and racial profiling. It is unfortunate that the Colorado Springs internal investigation did not criticize this instruction or even find it noteworthy.”

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In an open letter to the University of Colorado Board of Regents released today, the ACLU and the ACLU of Colorado urged the Board to reject the recommendation of CU President Hank Brown to terminate Professor Ward Churchill. President Brown’s decision ran counter to the majority of the Appeals Panel of the Privilege and Tenure Committee, which concluded that dismissal was not warranted.

National ACLU Executive Director Anthony Romero (of the ACLU) and Cathryn Hazouri, Executive Director of the ACLU of Colorado noted the highly charged political nature of the public uproar over Professor Churchill’s essay about the terrorist attacks on September 11, 2001. They stated that the “poisoned atmosphere in which this investigation was launched…[has] irretrievably tainted the process. The investigation of Professor Churchill’s scholarship cannot be separated from the indefensible lynch-mob furor that generated the initial calls for his termination.”

“The cure for unpopular speech is public debate,” says Hazouri, “not silencing a voice you don’t want to hear. Professor Churchill’s critics didn’t call for an investigation; they called for him to be fired. When those critics include the Governor and politicians with influence over the University budget, it’s impossible to conduct an impartial investigation.”

The letter warns that firing Professor Churchill over the results of an investigation triggered by his unpopular views which are clearly protected by the First Amendment creates a dangerous precedent when it comes to repressing academic freedom and chilling public debate.

--TEXT OF THE LETTER--

July 11, 2007

To the members of the University of Colorado Board of Regents:

Later this month, the Board of Regents will meet to consider a recommendation, made by University of Colorado President Hank Brown, that Professor Ward Churchill’s employment be terminated.

We write on behalf of the American Civil Liberties Union—an organization long dedicated to preserving the principles of the First Amendment and academic freedom—to urge you to reject this recommendation.

The investigation of Professor Churchill’s scholarship is the result of widespread publicity in early 2005 about certain unpopular views Professor Churchill expressed several years earlier in an essay about the terrorist attacks of September 11, 2001. Prominent public officials, including members of the legislature and the then-Governor of Colorado, quickly called for Professor Churchill’s termination. The Board of Regents called an emergency meeting, at which the Chancellor announced his plan for an immediate investigation of all of Professor Churchill’s writing and speeches to determine whether they provided any grounds for dismissal.

It is undisputed, however, that Professor Churchill’s views are protected by the First Amendment and cannot serve as a legal basis for any adverse employment action. Nevertheless, the University soon launched the investigation of Professor Churchill’s scholarship in an effort to find more defensible grounds for sanctioning him.

The investigative committee found six charges of research misconduct to be sustained. The Appeals Panel of the Privilege and Tenure Committee concluded that only three of those were valid. Only one member of the five-member investigative committee believed that dismissal was an appropriate sanction, and a majority of the appeals panel concluded that termination was not warranted. Despite these conclusions, the University President has recommended termination, thus urging the same result as the elected officials who publicly called for Professor Churchill’s termination in 2005. The current Governor of Colorado has now added his voice to those clamoring for Professor Churchill to be fired.

We believe the poisoned atmosphere in which this investigation was launched, and the circumstances under which it was initiated, have irretrievably tainted the process. The investigation of Professor Churchill’s scholarship cannot be separated from the indefensible lynch-mob furor that generated the initial calls for his termination. Firing Professor Churchill in these circumstances does not send a message about academic rigor and standards of professional integrity. On the contrary, it sends a warning to the academic community that politically unpopular dissenters speak out at their peril.

Accepting President Brown’s recommendation in these circumstances poses too great a risk that other members of the academic community will respond by choosing to silence themselves or temper the public expression of their views out of fear that they, too, will be subjected to detailed fishing expeditions and censure. Such a result not only undermines academic freedom, it also diminishes the range and breadth of public debate that is vital to a flourishing democracy. We urge you to reject President Brown’s recommendation.

Sincerely,

Anthony Romero
Cathryn Hazouri
Executive Director Executive Director
ACLU ACLU of Colorado 

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