Lawyer argues S.C. case

The water under the bridge in a freedom of speech case has been pushed back with force by a famed defense attorney who appeared in Charleston last week to argue on behalf of a South Carolina career activist.

Brett Bursey, a Columbia resident who founded the S.C. Progressive Network, is the only person ever convicted under the 1971 federal "presidential and presidential staff assassination, kidnapping and assault" code. Federal authorities have argued that Bursey compromised the security of the president when, at a presidential rally in 2002, he refused to move to a designated "free-speech zone." Bursey and his lawyers have said the arrest was part of a deliberate effort to quash dissent and violates the First Amendment. The case, tried in 2003, has been revived recently by a star lawyer.

Michael Tigar, who teaches at Duke University School of Law, has defended civil rights activist Angela Davis, Oklahoma City bomber accomplice Terry Nichols, The Washington Post, former White House press secretary Scott McClellan, Mobil Oil and many others. In an unusual legal move, Tigar filed a writ of coram nobis ("error before us") in federal court on behalf of Bursey.

At the October 2002 rally, Bursey was arrested on a state trespassing charge as he was protesting the coming war in Iraq. At the Columbiaairport, Bursey stood near many others, mostly supporters of President George W. Bush, holding a sign that read, "No more wars for oil." He refused to leave a secured area, arguing that free speech is a constitutional right and should not be limited to a location far from view of the president or the press.

The police dropped the trespassing charge against Bursey after four months since it was clear he did not trespass on public airport property at a time when many others also were present.

But U.S. Attorney Strom Thurmond Jr. brought federal misdemeanor charges against him under a statute that governs "presidential assassination, kidnapping and assault" and allows the U.S. Secret Service to create a secure zone around presidential events.

Bursey was convicted and fined $500. But this past Monday, Tigar had hoped to convince federal Magistrate Bristow Marchant that this earlier decision was made without the benefit of a key internal White House document that came to light recently.

The Presidential Advance Manual, published in October 2002 by the Office of Presidential Advance and made public last year by the American Civil Liberties Union, should have been submitted as evidence after Bursey's legal team subpoenaed the White House in November 2003, Tigar argued. That subpoena asked for "any and all memoranda or other written or electronic documents prepared (or received)" by White House staff or the White House U.S. Secret Service Liaison Office containing plans or guidelines to be used at public presidential events that might draw protesters.

Though most of the Presidential Advance Manual is redacted, Section V, called "Crowd-Raising and Ticket Distribution," discusses tactics that should be used to prevent the presence of demonstrators and to minimize their impact should they show up.

"There are several ways the advance person can prepare a site to minimize demonstrators," the manual states. "First, as always, work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed, preferably not in view of the event site or motorcade route."

The document goes on to recommend that officials form "rally squads" and provide them with placards that counter the message of protesters. "The rally squad's task is to use their signs and banners as shields between demonstrators and the main press platform" and to chant, "USA!, USA!, USA!" in an effort to "drown out" the protesters. "As a last resort, security should remove the demonstrators from the event site," the document says.

In an effort to identify protesters easily, the manual states that the White House advance person should "always check with local police to inquire of any demonstration permits issued prior to a visit."

"If it is determined that the media will not see or hear them and that they pose no potential disruption to the event, they can be ignored," the manual states. "On the other hand, if the group is carrying signs, trying to shout down the President, or has potential to cause some greater disruption to the event, action needs to be taken immediately to minimize the demonstrator's effect."

Court arguments

In court last Monday, Assistant U.S. Attorney Peter Phillips requested a summary judgment dismissal of Tigar's petition, saying there was no "causal connection" that the Secret Service was following directives of the manual or that Secret Service officials even knew of its existence.

Tigar argued that had the manual come to light during Bursey's trial, it likely would have altered its proceedings, prompted appearances by other witnesses and raised different questions and potentially influenced the outcome. He said there was no need to disprove what already had been decided, or to question the authority of the judge.

"We need to show there is evidence that casts doubt on the decision the court reached," he said.

"But this is a White House manual, it's not a Secret Service manual," Marchant said.

"Yes, but it directs the White House advance team to liaise with the Secret Service, that's the point," Tigar answered.

Furthermore, in any limited public forum, the First Amendment to the Constitution prohibits discrimination based on viewpoint, he said. At the time, there were other people at the airport with signs. "Bursey did nothing different from the people holding signs in support of Bush," Tigar said. The Secret Service's mandate, he argued, was to protect the president and stop protest.

At which the judge repeated his concern: "How does the manual change the facts of the statute?"

"The court might have reached a different conclusion had we had this new evidence," Tigar said, citing reasonable doubt and asking the judge to set aside Bursey's conviction.

In response, Phillips repeated that the discovery of the manual doesn't change anything.

"The directives of the manual tell White House staff what to do, not what the Secret Service should do," he said.

After the hearing, Tigar said he was ready to take the case to the U.S. District Court, then the U.S. 4th Circuit Court of Appeals, if necessary.

"This is important," he said. "A lack of candor with the tribunal is at issue."

Marchant is expected to issue a ruling in the coming weeks.

'Higher standard'

John Simpkins, a constitutional law expert who teaches at the Charleston School of Law, said that free speech can be restricted according to time, place and manner, but only when certain conditions are present. If protesters pose no threat or show no intention to incite a riot, they are protected under the First Amendment, Simpkins said.

"Any attempt to restrict speech according to content holds the government to a higher standard of proof," he said.

Authorities have a right to protect the president and protect the peace, "but if neither of those two dangers are present, then this does not appear to be an appropriate limitation of speech," Simpkins said. "It clearly indicates an attempt to suppress opposing viewpoints."

Melanie Knight, acting president of the Carolina Peace Resource Center, who was at the Bush protest in late 2002 with Bursey, was a spectator at Monday's hearing. She said police threatened continuously to arrest demonstrators even as the demonstrators moved away from the airport and into a UPS parking lot. She said there was no designated free-speech zone, and UPS employees were surprised to find a group of protesters gathered in their lot.

Bursey said the court can throw out the conviction, order a new trial or deny the current petition. He said he was glad when the government pressed charges.

"When the feds came after me, I said, 'Good,' because it offered an opportunity to challenge its patterns and practices," Bursey said.

In July 2005, Congress renewed the USA Patriot Act, amending many parts, including the section on domestic terrorism. Its language was broadened to limit proximity to government officials during an "event of national significance." Furthermore, it established "a permanent police force, to be known as the 'United States Secret Service Uniformed Division.' "

And what was once considered a misdemeanor — "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds so restricted in conjunction with an event designated as a special event of national significance" — became a felony.

Reach Adam Parker at 937-5902 or aparker@postandcourier.com.