Building in the Era of the Patriot ACT; Arrested for Stickering, Biking,
and other Misadventures (with Creative Direct Action)
by Benjamin Shepard
“What took you so long?” the property clerk at One Police
Plaza exclaimed with a smirk as I gave him my property receipt to get
back the “arrest evidence” confiscated during at the Republican
National Convention (RNC) back in August 2004. With charges of “criminal
misconduct” pending against me, evidence of my “criminal”
activities included my checkbook, cell phone, and work organizer, a
book, and a few political stickers, including my favorite the ubiquitous:
“NO, CHENEY, YOU GO “FUCK YOURSELF!””. These
materials had languished in the hands of the police department for the
seven months after plainclothes officers arrested me on my way to work
on August 31. In the months afterward, I was left to regroup without
my organizer, cell phone, telephone numbers, or checks. In between court
dates, isolation increased. But that’s the point isn’t it?
Waiting in line for my stuff once it was all done, I noted a sign declaring
the imperative of police “impartiality.” Not that any of
us in that line had been treated in an impartial manner by the praetorian
guards who had cleared the streets of our fair city to make New York
appear welcoming to the Republicans, who had brought us this Orwellian
nightmare in the first place. Few activists could expect such “impartiality”
from the police before the RNC or, for that matter, any day since the
9/11 terrorist attacks or the passage of the Patriot Act soon thereafter.
The following is an account of activist experiences of being arrested
for stickering, biking, and other misadventures with civil disobedience
in the post-Patriot Act era. The first part of the essay looks at my
experience of being preemptively arrested for stickering during the
RNC. It is followed by an account of the struggle against the attack
on Critical Mass bike rides before and after the RNC. After being labeled
“bike hooligans” by the local press, Critical Mass participants
endured a crackdown which continues to this day. Barbara Ross, a 41-year-old
human resources manager and urban bike commuter, explaines, “The
NYPD has arrested me twice and confiscated my bicycle three times for
the so-called-crime of bicycling without a permit.” The third
and final section considers the use of public hysteria to justify preemptive
arrest and the control of mobilization structures witnessed during most
of the recent convergence actions, including the RNC. “The rule
that long week was preemptive arrest,” explained Eugene Karmazin
in a recent story about Critical Mass (2005). “Simply put, anyone
seemingly dissident was forcibly removed from the streets, effectively
removing them from public discourse as well. More than 1,800 arrests
where made during the RNC, more than at any prior Republican or Democratic
convention in U.S. history.” This pre emptive approach has become
pro forma for policing public space. “The last Friday of every
month, the NYPD turns Union Square Park into a prison yard,” Madeline
Nelson, a bike supporter, explained before the May 2005 Critical Mass
ride. “They line the park and surrounding streets with scores
of police vehicles and hundreds of uniformed and undercover cops waiting
to scoop up anyone who happens to be there. Who is authorizing the use
of taxpayer resources to suppress a public gathering?”
“Why are you doing this?” the Reverend Billy asked a policeman
as he prepared to arrest a group of bikers before the March 2005 Critical
Mass. “Well,” the officer is said to have declared, “everything
changed after 9/11.” In the days after 9/11, panic over public
space and the movement of those within it increased, and restrictions
on the public commons grew. By the time of the RNC, acts of political
freedom?public performances, bike rides, and old-school civil disobedience?were
targeted and restricted. Random acts of alienation-crushing fun were
targeted and isolated. For me, much of the problem began the morning
of August 31 when I planned to participate in some street theatre.
September 1, 2004
I sent the following email message out to my affinity group, which I
had not been able to meet up with for the August 31 day of direct action:
“Well, yesterday was a weird day. At 10 am, I was walking to work
in the Bronx and was pulled over by two plainclothes police officers
from the New York Police Department. They told me, “Ben Shepard,
there is a warrant for your arrest.” I was driven down to the
Chelsea Piers holding area, searched, and held in a chainlink and barbed
wire holding area, where I spend most of the day in a solitary holding
cell without seeing lawyers or being told what the charges were against
me. There they confiscated my papers, a book, and some stickers to be
put in the “evidence” folder”; my clown army stuff?including
funny hat, feather duster, silly toys, RNC Clown Delegation pass?was
put in another bag…
My affinity group was the Clandestine Insurgent Rebel Clown Army (CIRCA),
a spin-off of Reclaim the Streets (RTS) New York. The group had morphed
from street party organizers (see Duncombe, 2002) into guerilla theatre
performers who had staged actions as the Billionaires for Bush and Gore
at the 2000 RNC in Philadelphia (Boyd, 2002), the Students for an Undemocratic
Society during the Bush inauguration in 2001 (Grote, 2002), a skit between
labor organizers and sweatshop owners the next May Day (Bogad, 2003),
an Absurd Response to an Absurd War once war entered the equation (Shepard,
2003a,b), and later as Patriots against the Patriot Act once the notion
total war would be used to restrict movement in public space (Shepard,
As we had done many times in the past when we ran out of new ideas,
we turned to the creative work of RTS London (see Jordan, 1998). When
RTS London planned a guerilla gardening action for May Day 2000, we
followed suit, organizing our own gardening action the same day (see
Duncombe, 2000). Larry, a member of RTS New York who’d had a teaching
assignment in Birmingham the previous year, learned the clown shtick
and performed it when Bush visited London in the Winter of 2003 (see
Bogad, 2004). In the months before the RNC, a few of us felt there was
not enough play or rambunctious ness in the preparations or possible
theatrics planned for the convention protests. So we recruited Larry
to help the New York RTS chapter organize itself as part of the Clown
International (see Bogad, In Press). We also put him to work writing
our “Anti-Official Communiqué,” which explained the
role of the Clown Delegation at the Republican National (Clown) Convention:
We, the clowns, jesters and tricksters of the Clandestine Insurgent
Rebel Clown Army (CIRCA), are delighted to host the Republican National
Clown Convention (RNCC) in our fair city of New York. We are so gratified
that the Radical Right has brought their grand circus to our humble
town, and we are eager to attend!
We are particularly inspired by the Head Clown, DUBYA, a fool of
DUBYA is a truly talented trickster; transforming his ruling-class-wastrel
life story into a faux-farmer media persona; creating false WMDs and
conjuring fake connections to Al Qaeda to justify the invasion of
Iraq; doling out a plastic turkey to the suffering troops there for
the news cameras; giving speeches before false backdrops of “MADE
IN USA” boxes to herald the “comeback” of the economy
he has despoiled for his inner circle’s gain. And now he and
his circus come to co-opt the memory of 9/11 and turn our city’s
trauma into their triumphalism. He’s extremely funny, though
we think he may be taking his tragic joke too far….
The key moment for CIRCA was his fabulous flight suit appearance
on the aircraft carrier, where he angled the cameras so the nearby
shoreline could not be seen, where he converted his draft-dodging
into pseudo-heroism, where he took the debacle of an unnecessary war
and occupation and summed it up with “Mission Accomplished.”
What a fantastic clown! Bravo! Encore! Two Thumbs Up!!! We laughed,
we cried, we continued to count the dead….
CIRCA wishes to express its admiration for the horrific hijinx of
Dubya the Uber-Clown by dressing in flight suits and strutting our
thumbs-up stuff on the streets of Manhattan. We will imitate our hero
by playing soldier, and playing golf, while Rome burns. If we also
pretend to indulge in his narcotic pastimes of times past, it is only
in flattering imitation of our Great Leader.
Our credentials are clear. Our hearts are open. Our flight-suit crotches
are bulging. We are here to attend the Convention and lovingly declare:
We premiered the Clown Army during the NEO-CONey Island Block Party
in July, organized by the NoRNC Arts Clearinghouse and the Change You
Want to See Gallery, and later during the August 29 protest to great
reviews from all the local papers.
As the RNC protests unfolded, creative action was among the most effective
ways to bring attention to a cause without putting protestors in too
much harm’s way. Not content to merely dress as clowns, we made
sure unofficial gesture and play and motion were key parts of our act.
Thus, we ran through the crowd, blocking our entrances with gestures
of envy, love, and disgust; worshipped fellow clowns such as the president
and Ronald McDonald; pranced, mumbled jibberish, played on the theater
of the ridiculous; and riffed on Nixon’s internal dialogue with
himself and his metal detector on the beach. (Surprisingly few picked
up on the reference!) The shtick included a number of potty jokes about
missles and phallusus, including grunts of, ‘Suddam!!! Suddam”
with hands down our pants, in homage to the Bushies’ obsessive,
almost sexual, pursuit of the former Iraqi dictator. Much was light
absurdist theatre, including a riff on the MD search, held with members
of the crowd, which included butt sniffing and more mature, sophisticated
forms of political satire, such as a mock Coke binge in homage to our
presidential Clown’s celebrated pasts. This included improvisational
moments, such as rushing to bow down in front of a blow up doll of someone
was carrying of Ronald McDoland, whom we coveted as, “Our Leader!!!”
Or we paid homage to Bush’s infamous “watch this drive”
scene from the movie Fahrenheiht 911, before screaming “PANIC!”
as if bombs were dropping, and running into walls, telephone posts,
and other clownish fun. When this slowed, some regrouped for further
inspiration from our Bush “mini me” puppet held high above
to be honored and praised; others considered with the theatre of the
ridiculous jibberish. The former took cues from the doll and repeated
his Mao-like Bushisms and recited these bits of wisdom with monotone,
brainwashed, Mao like revolutionary fervor:
You can’t take the high horse and then claim the low road.
I know the human being and the fish can co-exist peacefully.
Verbosity leads to unclear inarticulate things.
I stand by all the misstatements that I’ve made.
A low voter turn out is an indication of fewer people going the polls.
It’s clearly a budget; it’s gotta lotta numbers in it.
The future will be better tomorrow.
I know how hard it is to put food on your family.
The message, sent from God to Mini-Bush, was repeated through us.
Core chants followed in a call and response fashion: “Rarely is
the question asked,” said the first group…“is our
children learning?” responded the second. Our clown leader Monica,
a choir member with the Church of Stop Shopping, led us in a wonderful
version of the Village People song “YMCA”:
Young men, there’s a place to be free
We said young men, you can bomb oversea
You can do that without much safety
Me? I’ll be golfing at the ranch. Yeah!
We spelled “BUSH” as the rest of the group chimed in with
Its fun to snort coke with B.U.S.H
Its fun to blow cash with B.U.S.H.
Bombing families all day
Takes my worries away
Its a constant rodeo!
When the police arrived, we either cowered, sniveling and begging
for forgiveness, or followed the Monty Python “run away”
routine and sped off to the nearest subway. The thinking behind the
skits was that as the War on Terror continues to use the Patriot Act
to link protest with terrorism, such forms of playful, unthreatening,
yet still subversive engagement become a compelling model of political
engagement. The press lapped up the story. “Acts of creative street
theater stole the show, with creative expressions suggesting that America’s
activist movement may have come of age,” one observer noted (Wheeler,
2004). As this writer described the August 29 clown shtick:
Running helter-skelter down side streets perpendicular to the protest
thoroughfare, the Clandestine Insurgent Rebel Clown Army played a virtual
game of freeze tag with journalists and photographers before suddenly
retreating in chaotic fashion. They wore dirty green army fatigues,
fake passes identifying them as Republican delegates to the convention,
and ridiculous clown paint on their faces.
“Our hero, Dubya, is in town for the Republican National Clown
Convention, so we’ve got our credentials,” explained Larry.
“We’re the Big Top delegation, from right between Kansas
and Missouri. We’re ready. We’re just as big clowns as they
are” (quoted in Wheeler, 2004). Put to explain the clown schtick,
Herbert Marcuse’s suggestion that that true engagement between
arts and activism offers a route to “aesthetic transformation”
is instructive. Given the right sense of fun and theatrics, these connections
“represent... the prevailing unfreedom and rebelling forces, thus
breaking through the mystified (and petrified) social reality, and opening
the horizon of change (liberation)” (1978: xi). Few of us?or anyone
else who saw the Clown Army in action?could doubt its propensity to
meet such a challenge. And, it appears, this is why the Clown Army represented
a threat. There was no telling how much of an impact the group might
have. So, it was no surprise that the police prevented us from reprising
our skit during the day of direct action and civil disobedience planned
for August 31.
August 31, 2004: Back at Pier 57
“Don’t look at me,” a policeman groaned before he
told me to take off my shoelaces and put me through the system. The
process began at Pier 57, on the West Side of Manhattan. Here, police
cataloged the “evidence” against me: a handful of stickers
declaring “A31: DUMP BUSH” (“graffiti instruments,”
as the city called them), a child’s megaphone I borrowed from
my two-year-old daughter, a feather duster, a list of locations of for
actions. Most of the police officers thought the clown stuff was funny.
What they did not find amusing was my copy of The Civil Disobedience
Handbook: A Brief History and Practical Advice for the Politically Disenchanted,
edited by James Tracy. Inside the book, the police noted the autographed
dedication from the author, whom I had met before the previous Friday
night’s Critical Mass ride: “Ben, keep up the inspiring
organizing and writing. We’ll conspire again soon. Hasta La Victoria!!!”
I’d forgotten the book was in my bag. Yet, I knew I was sunk when
they found it. A bearded Henry David Thoreau was pictured on the cover.
“What’s this, anarchism?” several policemen asked.
“Is he one of those violent anarchists?” they asked pointedly.
No explanation of Thoreau’s take on peaceful civil disobedience
would convince them otherwise. Paranoia had reigned throughout the summer.
Police instruction manuals issued before the RNC protests had warned
that violent anarchists planned to take hold of the city using tricky,
dangerous tactics, including releasing marbles to wreak havoc on police
horses, using frozen balloons as weapons, and marching bands to lead
the cavalcade of danger. No wonder the police were determined to keep
a clown in a guerilla theater troop from hitting the streets during
the president’s coronation ceremony.
“What are you guys going to do when the president gets reelected?”
one of the officers asked as I was being processed. “Well, you
guys aren’t going to get the new union contract you’ve been
looking for,” I thought, though I said nothing. Still, most of
the cops were inocuous and willing to talk about the weirdness of the
day at the pier and their own difficulties with procuring a new contract
(McPhee and Lemire, 2004).
Once the mishigas was over, I was alone in my cell. I had spent time
in jail cells before, but never without other arrestees with whom to
commiserate. I had expected to see others from the summer’s organizing
efforts. Instead, I was accompanied only by silence. With the exception
of the police and about four others in the adjoining cell, the pier
was completely empty. I thought about the Bader Meinhof gang members
who spent years in solitary confinement during the 1970s and slowly
lost their minds. By early afternoon, members of the FBI and the Office
of Homeland Security came to interview me. They inquired as to whether
I knew anything about the “violent anarchists” we had all
heard so much about. “I don’t know why you are here,”
one said. “These guys are all really flipped out about that book
As soon as the feds left, my arresting officers came back to ask me
with whom I’d done my organizing. Despite Police Commissioner
Raymond Kelly’s insistence that such forms were no longer utilized,
the questions followed the lines of the “demonstration debriefing
form,” which had been ruled unconstitutional (Rashbaum, 2003a,b).
“Everything in your bag says ‘A31,’ did you work with
that group?” he kept asking. Having tried to be genial all morning,
I finally told them I could not speak without my lawyer present. They
then left me alone. And one of those weird moments that sometimes occur
with police unfolded. When my arresting officer came back, he walked
close to the wire fence and said, “I know this must have been
scary, but you have been very cool about it. I appreciate it.”
I nodded and thanked him, wishing he’d just let me out. “We’re
going to get you out of here,” he explained. Then they walked
me to the car.
To the Tombs
“I still have not been told what I’m being charged with,”
I said in the car on the way from Pier 57 to Central Booking?or “the
Tombs,” as local activists describe the cavernous underground
jail under Center Street where many arrestees are charged and sentenced.
“You are going to laugh when you hear what this was all about,”
my arresting officer replied. Part of the punishment of the Tombs is
the tedium of the fingerprinting identification process, which can take
hours. There seemed to be five policemen for every one arrestee. This
loose-ends feeling creates a frat house type of environment for the
police, who jovially chat among themselves and toss footballs?sometimes
over the heads of the “prisoners,” as they called us?while
they herd one handcuffed arrestee at a time through a tedious litany
of steps from pat-downs, to confiscation of shoelaces, pens, and other
possibly dangerous property, through fingerprinting and other mundane
details. There is a sense that the recent Abu Ghraib prison violations
could easily occur in a context such as this. By far, the greatest duress
of the Tombs is the boredom. “If I count the cracks on this ceiling
one more time, I’m going to kill myself,” the late Keith
Cylar, a member of ACT UP and Housing Works, once related to me as we
went through the same tedium. “Get me fuck out of here.”
At the Tombs, I shared my holding cell with some Vassar students and
some San Franciscans arrested for performing on a subway, and another
group arrested for performing on the street. In a city where a day rarely
passes during which a subway car is not transformed into a performance
venue for some sort of hustle, the mere act of students lying down as
if they were dead Iraqis was enough to invite the arrest of the entire
group. Most were charged with disorderly conduct.
At some point as I was being processed, I injected myself into the banter
of one of the officers with a particularly thick Long Island accent,
who had been commenting on everyone’s charges. “So what
did you do?” he asked me. “I still don’t know. I haven’t
been told a thing. I was picked up on the way to work.” He looked
puzzled and shuffled through some of his papers. “Oh yeah,”
he said. “You were the one arrested for stickering.”
Given that I was one of the first arrested, I was also one of the first
released around 9 pm. Only when I met the judge did I first hear about
the charges against me: four counts of criminal misconduct for “criminal
mischief,” “graffiti,” and “possessing tools
of graffiti.” The alleged graffiti-ing was said to have taken
place four days earlier. Apparently, an undercover policeman had seen
me posting “A31: DUMP BUSH” stickers in Brooklyn and had
followed me up to the Bronx to find out where I worked. But instead
of arresting me at the time of the alleged “crime,” the
city apparently opted to wait until August 31, the day of planned direct
action against the RNC. Later many would suggest that given I had found
the space the A31 spokescouncil meetings, the police targeted me, as
they had many of the other organizers during the RNC (more on this later
in the essay). Yet, the morning I was arrested none of the other A31
organizers were inside Pier 57. It was the strangest bust I had ever
undergone. As I sat in the cell starring at the barbed wire, I thought
about the $100 million spent on security for the RNC protests alone,
the number of full-time cops it took to arrest me and put me through
the system. And all this because of the content of a sticker.
Stickering as an Act of Revolution
Throughout much of the summer of 2004, our daughter, Dodi, had become
fixated on stickering, placing her stickers on doors, in books, in the
halls of our building, and so forth. I followed suit, placing antiwar
stickers on her crib and her dollhouse. Almost everyone loves to play
with, share, and display great stickers?children, baseball card collectors,
artists, even political activists. In their purest form, stickers create
an adhesive means to send a colorful message to the world.
Take the AIDS activist group, ACT UP. In their earliest years, a spirit
of cultural play was intimately entwined with the group’s work.
This could be witnessed in the group’s demonstrations in the streets
and in its outreach materials?the stickers and posters found in bathroom
stalls, corners of sex clubs, fine art galleries, and, most importantly,
the public commons. Throughout the late 1980s and 1990s, the striking
“Silence=Death” stickers (featuring an inverted version
of the pink triangle symbol the Nazis forced homosexuals to wear) could
be found on streets from New York to San Francisco, from Paris to San
Juan. “Stickers bearing the haunting image have been plastered
on subways, payphones, billboards, even the backs of unsuspecting policemen’s
jackets; it has become as familiar and desirable a part of Manhattan’s
bombarding visual landscape as the similarly shaped Mercedes Benz emblem,”
member Alisa Solomon recalled (1998: 448-9).
The “Silence=Death” stickers and posters were an instant
draw for ACT UP’s Monday night meetings. Patrick Moore, another
early member, recalled a feeling of awe, being “forever changed
by something as simple as a poster,” when he first moved to New
York. “In 1987 I began seeing a remarkable poster on the streets
of downtown New York. The poster seemed to resonate with a new kind
of energy, with its glossy black field interrupted by a single pink
triangle.” Small type at the bottom of the poster questioned:
“Why is Reagan silent about AIDS? What is really going on at the
CDC? Turn anger, fear, grief into action.” The stickers and posters
were instantly effective at speaking to and drawing gay men and lesbians
to participate in ACT UP. They proved so successful that ACT UP members
used a Spanish translation to help organize a chapter in Puerto Rico.
Moises Agosto, who had done street outreach for the group, recalled:
We would go with our ACT UP outfits?little short jeans and boots?and
go to people, smile and put a sticker on their chest. They would go,
“What’s this?” We would say, “Come to this meeting.”
It was amazing because then the other people came?the other ACT UP members,
other Latinos, and also the non-Latino members…in some two weeks,
we had a meeting of like 200 people.
Over the next decade, this effective organizing strategy would draw
countless members to the group, both in New York City and across the
U.S. and around the world.
However, this outreach approach was not without its detractors, who
were not always pleased with the content or method of these guerilla
promotional activities. For example, in 1989, ACT UP member Bill Dobbs
was arrested at Yale University for displaying 11x17 posters with the
words “Sex Is” and showing images and texts from old sexology
manuals deemed “obscene.” The charges against Dobbs were
never dropped (Crimp, 2002: 158).
Some 15 years later, Dobbs?like many old ACT UPpers?had become intimately
involved in the antiwar movement. In the summer of 2004, as a spokesman
for United for Peace and Justice (UFPJ), he used small concise sound
bites to highlight the First Amendment implications of the group’s
battle with the city to obtain a permit for a mass rally in Central
Park on August 29, the day before the start of the RNC.
Dobbs’ UFPJ colleague, L.A. Kauffman, maintains her own place
in stickering lore. Kauffman, who was once arrested for a “fax
zap” on a public official (Kauffman 1998), who worked with Absurd
Response Project before joining UFPJ helped unleash a torrent of antiwar
stickers during the days before the Iraq invasion in March 2003. “All
War All the Time?” the tiny pink and black stickers, found throughout
New York’s street’s in 2002-3, asked, concluding, “Log
on, plug in, stop the war; Mobilize New York.” It was impossible
to walk through New York City in 2002-3 without seeing these stickers.
Another sticker featured a picture of the globe with a flag proclaiming
“The World Says No to War, Feb. 15.” Again, it was difficult
to find a street, subway car, or mailbox in the city that was not adorned
with one of these stickers. Since the campaign began in the fall of
2002, New York activistsdistributed more than 900,000 pieces of literature,
including 14,000 of Kauffman’s leaflets that had been downloaded
off of the internet.
In the summer of 2003, when two of the UFPJ stickers were found on a
shrine for fallen firemen who had been lost during the World Trade Center
attacks, it triggered a backlash. Dobbs was forced to defend UFPJ and
its stickers. By the following summer, the New York City Council moved
to criminalize the distribution of such stickers, while holding the
distributor accountable. Council legislation stated:
There shall be a rebuttable presumption that the person whose name,
telephone number, or other identifying information appears on any sticker
or decal affixed, attached or placed by whatever means in violation
of subdivision a of this section violated this section by either (i)
affixing, attaching or placing by whatever means such sticker or decal
or (ii) directing, suffering or permitting a servant, agent, employee
or other individual under such persons control to engage in such activity.
Activists initially laughed off the threat of being arrested or charged
with making or distributing stickers or posters throughout most of the
summer of 2004. (After the law was proposed before the City Council,
it was difficult to assess whether it was actually passed). Regardless,
enforcement of such acts of vandalism had been part of “quality
of life” policing for well over a decade. And activists had long
been playing cat-and-mouse games with the police over the practice.
As early as 1997, for example, neighborhood members were arrested for
placing posters advertising a garage sale (Dillon, 1997). The owner
of Meow Mix was charged with posting advertisements for bands at her
club. By 1999, Reverend Billy was charged $1,000 per poster for advertising
his shows. The crackdown on advertisements for garage sales, Meow Mix
events, and Reverend Billy shows?like “quality of life”
policing targeted against gardens and cruising spots?fit into a pattern
of attacks on events where members converge to build community.
In response to this new politics, the Lower East Side Collective posted
the following message:
Do Not Read This Poster
It has been placed here in violation of
the Giuliani Administration’s
“Quality of Life” campaign.
No posters or handbills of any kind may
be affixed to any light post or bus shelter
in New York City.
This ban covers all categories of notices
- art spaces
- small businesses
- public lectures
- political rallies
Free speech is too untidy for Rudy’s New York.
Of course, Mayor Rudolph Giuliani’s “zero tolerence”
approach to policing public spaces drew the ire of activists. For many,
the underside of the “quality of life” campaign was increased
police brutality, social control, and the “blandification”
of urban space (Sites, 2003: 60). Recent histories of police violence
in New York City devote considerable attention to Giuliani’s aggressive
policing approach (Johnson, 2003). The litany of complaints was not
short, yet the mayor’s pro-growth and social control model of
urban governance was emulated across the country?most recently in Los
Angeles?and even in Mexico City (Lipton, 2004). Rudy would have a high
profile presence throughout the RNC.
From 11 to 72 Hours
Unlike many of the other RNC arrestees, I was in jail a relatively short
amount of time?say 11 hours. As the week wore on arrest numbers mounted;
many would be held for two or three days before they saw a judge. “Far
too many New Yorkers were far too quiet,” civil liberties advocate
Norman Siegel proclaimed after fighting for the release of activists
held for over 70 hours during the convention. “Our freedoms are
not taken overnight, they disappear gradually.” (These long wait
times inspired New York Councilman Bill Perkins to introduce legislation
to New York’s City Council which would curtail these long sentences
in May of 2005 (Lombardi, 2005; Murphy, 2005, also see http://www.nybordc.org).
By the end of the week of protests, some 1,800 individuals?activists
and bystanders alike?had been arrested. While some suggested that the
movement was loosing steam and the calls for direct action were less
effective, others, such as myself, looked with wonder at both the well-targeted
stunts of small groups of AIDS activists who received front-page coverage
for their work all week and those involved in the big direct actions
willing to sit down in the streets and say “No!”
“In the history of political conventions, there have never been
so many people demonstrating opposition to their government,”
former Chicago Seven member and California state Senator Tom Hayden
told demonstrators on September 1?even as many remained confined on
Pier 57. Hayden elaborated that the 1968 generation never saw the kind
of preemptive arrests, control culture, and repression which had become
common features of recent protests such as the RNC or the demonstrations
against the Free Trade Area of the Americas (FTAA) in Miami in November
2003 (Slackman and Cardwell, 2004). My arrest was one of countless strange
stories of overreactions by the police.
August 27, 2004: The attack on Critical Mass
A helicopter pulsed overhead as nervous activists meandered around St.
Mark’s Church in the minutes after over several hundred bikers
were arrested during for participating in a community bike ride on August
27, the Friday night preceding the RNC. Earlier in the evening, some
5,000 bikers had formed a cavalcade through the summer night. The ride
was the culmination of a near-decade of bike and public space activism
(Shepard and Moore, 2002). After years of theme-based Critical Mass
bike rides supporting community gardens, nonpolluting transportation,
even a commemoration of lost firemen after 9/11, the summers of 2003
and 2004 brought thousands of new members into New York’s public
space/environmental activism. Throughout the spring and summer of 2004,
activists across the country recognized that the last Friday of August
dovetailed with the RNC protests. Critical Mass rides took place around
the world on the last Friday of every month. Anticipating the RNC, riders
careened across the FDR freeway during the July 30 ride?the last ride
of “the fun old days” of Critical Mass. By the next month,
everything would be different.
By August, organizing efforts were met with government surveillance
and attempts at total control of the monthly Critical Mass rides. During
the last week of the month, police began making routine visits to the
TIME’S UP! space (headquarters of the local bike activist group),
where they asked about the whereabouts of a number of organizers who
were on their radar. Surveillance, such as visits to the homes and workplace
of activists known to be effective organizers, was common during the
days before the RNC.
Two days before the August ride, organizers were informed that they
could not hold their planned after-party at the Frying Pan, a regular
venue for political parties and fundraisers, including many previous
dance parties after Critical Mass rides. Apparently, the police, the
Coast Guard, and others had flooded the Frying Pan owners with phone
calls. Under heat from the federal government, the owners canceled the
party. The Critical Mass rides and after-parties are events at which
the roving activist social world converges on a monthly basis. Without
opportunities to get together, these communities face the threat of
oblivion. Once again, a community event was being attacked under the
auspices of “zero tolerance” policing. That night, organizers
distributed a flyer reading:
Important Message to Our Community.
Our beloved Critical Mass Ride is under attack!
All threats, intimidation tactics and harassment, however, will not
keep us from going forward with this amazing community ritual! We
have worked hard to build this dynamic community and to advocate for
the rights of those that use alternative modes of transportation!
We have worked hard to reclaim our rights to public space in our city
of New York!
The message implored ride supporters to come out in force. It emphasized
community interrelatedness, play, and pleasure as responses to the impending
panic, and specifically called on riders not to cave in to a culture
of fear and intimidation:
Tell all your friends. Bring family, neighbors, lovers and strangers.
Bring noisemakers, musical instruments, face-paint, flowers, and your
energy and joy. Bring things to juggle and to share and also your
conviction that we have a right to converge and ride throughout this
glorious city. Bring video cameras.
We will not be intimidated!
We will not be threatened and harassed!
This is our city! This is our community!
Let’s make this the biggest, loudest, most joyful Critical Mass
That Friday night, 5,000 riders?both locals and itinerant activists
in town for the RNC?responded to the call. It was the largest Critical
Mass ride in New York City history. Those who participated encountered
the brand of demonization of protest and community building that had
become a typical feature of the Patriot Act era. Over 250 riders were
arrested that night; another 150 bicyclists were arrested by the time
the RNC had ended, totaling over 400 bike arrests during the RNC alone.
“Police hate to be upstaged,” one observer involved in radical
gardening and biking noted. Both community gardening and bicycling had
become targets of government crackdowns because they both seemed to
advocate a vision of urban life in which care and connection with neighbors
was prioritized over policing, security culture, and entrance fees.
Both community gardening and biking challenged notions of the city as
profit-making growth machine.
In the case of Critical Mass, the police appeared to be responding to
the prefigurative “Yes”?the community-building process and
the spontaneous ritual of community that unfolded the last Friday of
every month. Activists had created an image of urban life built on affective
play: bike riding amongst friends and neighbors in a healthy sustainable
city. These rides functioned as open-ended, leaderless democratic free-for-alls?compelling
spaces open for more and more bikers to participate. The police seemed
upset that a group of citizens was not interested in asking for permission
or asking them to play a role in helping organize their leaderless community.
For many, the ride had become a sort of living example of noncommidified
possibility. Thus, Critical Mass represented a powerful “Yes”
to life, community, and authentic fun in a world of “Nos.”
While the police formed a security detail for the malling of Manhattan
and the suburbanization of NewYork, Critical Mass rides represented
a form of community building that had nothing to do with citizenship
as shopping endeavor.
September and October 2004: A Legal Fight Intensifies
“We are not blocking traffic. We are traffic” is the motto
of Critical Mass. Cars make up traffic, and so do bikes. Few people
expect car drivers to ask for permission to clog the streets. Bicyclists
were claiming the same space for themselves.
The arrests preceding the RNC were only the beginning of a long legal
fight between bikers and the police over the definition of a “procession.”
Police added a new element to the fight during the September 24 ride:
cutting chains and confiscating 40 parked bicycles. In response, those
whose bikes had been taken retained civil liberties attorney Norman
Siegel, who had successfully fought Giuliani over similar First Amendment
cases in the 1990s, and filed an injunction against the city. For many
bikers, the debate about Critical Mass spoke to core constitutional
rights, including the First Amendment right of the people “peaceably
to assemble” and the Fifth Amendment right not to be “deprived
of life liberty, or property, without due process of law.” Cases
involving the Fifth Amendment are routed to federal court. Thus, the
riders filing for the loss of their bikes learned that U.S. District
Judge William H. Pauley III would preside over their case.
In response to the bikers’ lawsuit, the NYPD filed a counter injunction
against Critical Mass, demanding that the leaderless ritual obtain a
permit for the next communal bike ride. The police asserted that Critical
Mass was a parade without a permit. Arriving just days before the next
scheduled ride, the city’s argument presented a number of questions
and conundrums about the nature and definition of a procession. Was
it possible for a community event without a leader or a sponsor to apply
for a permit? If so, who would do the applying? Most important, how
and in what way did the first, fifth, and fourteenth amendments to the
U.S. Constitution apply to specific New York City traffic ordinances?
On October 28, 2004, Judge Pauley ruled that the city had violated the
bikers’ right to due process by confiscating their bikes without
charging the riders with a crime:
By attempting to use litigation as its platform, the city has injected
a slew of important and complex issues into this action. With only two
days to respond to the city’s application, the Plaintiffs are
prejudiced, and the Court is short-changed.
. . . Plaintiff’s motion for preliminary injunction is granted
in part, and the city’s motion for preliminary injunction is denied.
Specifically, the city and its police officers and agents are preliminarily
enjoined from seizing bicycles used by participants in the October 29,
2004, Critical Mass bike ride unless said participants are provided
with notice of the reasons for seizure or they are charged with a crime
or violation of law (quoted in Karmazin, 2005).
With this victory in hand (see Moynihan, 2004), the Critical Mass ride
went forward the last Friday of October. The Halloween ride is usually
the most colorful of the year. Without a permit, police arrested 33
bikers that Friday, just days before the November 2 elections. Battered
but determined, bikers and their friends danced the night away at an
after-party held at the TIME’S UP! space on Houston Street. Outside,
police circled the party, confiscated more bikes, and eventually raided
November 2004: Buy Nothing Day in a Police State
The next month, the Critical Mass ride was scheduled to take place the
day after Thanksgiving. Many activists know the day as International
Buy Nothing Day. The Reverend Billy sponsored a series of pranks and
zaps throughout the day. Throughout the summer, the Reverend had used
the First Amendment like garlic to protect himself as he lead thousands
in reciting the amendment at Ground Zero (the former site of the World
Trade Center). It seems the police have a hard time arresting a group
of people reciting, “Congress shall pass no law… prohibiting…the
right of people to peaceably assemble...” So the same talisman
was employed on Buy Nothing Day.
But the charm did not work as well that day, and the good Reverend spent
a night in the Tombs after his performance inside a Starbucks coffee
shop. He would be joined by a group of 17 bikers later in the evening.
After coming home from Reverend Billy’s show, I grabbed Dodi and
we went to wish the Critical Mass riders well. Union Square, where the
bikers usually converge before the ride, was surrounded by police. “White
shirts,” the commanding officers, talked with detectives. They
all tried to look important, shuffling their jackets with their hands
in their pants in such as way as to show everyone that they had badges
Dodi wanted some French fries, so we ran into a fast food restaurant
where several more police officers were also waiting in line. There
must have been 25 Patrol Wagons surrounding the park. God knows much
the show of force cost in police overtime pay. Dodi and I sat to talk
and share fries with the riders. Gloom filled the dark night air. That
night she learned the word “fuck”?an epithet repeated by
many of the nervous riders after reading a flyer passed out by the police:
NOTICE TO BICYCLISTS
- THE NEW YORK CITY POLICE DEPARTMENT REQUIRES YOUR COOPERATION IN
COMPLYING WITH THE LAW AND PROTECTING THE PUBLIC FROM HARM
- IT IS DANGEROUS AND ILLEGAL TO RIDE A BICYCLE IN A PROCESSION ON
THE PUBLIC STREETS WITHIN NEW YORK CITY, IF A PERMIT FOR THE PROCESSION
HAS NOT BEEN ISSUED BY THE NEW YORK CITY POLICE DEPARTMENT.
- NO PERMIT HAS BEEN ISSUED FOR THE A BICYCLE PROCESSION TONIGHT,
NOVEMBER 26, 2004.
- IF YOU CHOOSE TO RIDE IN A PROCESSION THIS EVENING, YOU WILL BE
ARRESTED AND YOUR BICYCLE WILL BE SEIZED.
- THANK YOU FOR YOUR COOPERATION.
Dodi and I wished everyone well, hoping they would not face a night
at Central Booking. While the police had not identified which laws the
bikers were ostensibly breaking, this did not stop them from presenting
on ominous show of force and eventually arresting 17 of the riders.
As Dodi and I left, we hoped to avoid police ire as we walked along
the sidewalk to the subway entrance. Discussion on the Indy Media website
that night involved images of a city that felt like a police state.
December 2004: Finally, a Win
As fall turned to winter, the police and the bikers continued to spar
over the definition of a public procession. The struggle marked yet
another in an ongoing series of skirmishes in what amounted to a class
war over liberatory urbanism versus control of public space (Ferrell,
2001; Shepard, 2002).
The year ended on an up note. Judge Pauley threw out the city’s
counter injunction over Critical Mass, suggesting that the conflict
would be best handled in state court. Pauley, who was careful not to
appear to support the bikers, specifically noted that the city had tolerated
and even supported the rides in years past. “After allowing Critical
Mass rides in Manhattan for 10 years without permits,” he explained,
“the police department has acquiesced to the very conduct it now
seeks to prohibit” (Bray vs. The City of New York: 20). Further,
the judge highlighted the testimony by assistant Police Chief Bruce
H. Smolka, Jr., who confessed that the NYPD “can enforce the laws
without an injunction, but an injunction would be helpful.”
Pauley rejected the city’s push to require Critical Mass to apply
for permits and wait for approval from the Parks Department before the
rides. He noted that since there is no organizer for the event, the
application for permits would not be possible for such an amoeba-like
entity (Associated Press, 2004). Thus, the city’s claim could
not be sustained. “The City does not aver that it seized Plaintiff’s
bicycles on September 24, 2004 to redress violations of the special
event permit requirement,” Pauley wrote. “There is no logical
connection between the claims, other than the fact that they both relate
to the Plaintiff’s status as Critical Mass riders. This is not
sufficient” (Bray vs. The City of New York: 12).
Pauley specifically addressed the definition of permitted actions at
the heart of the controversy. “[T]he applicability of the parade
permit requirement has not been adequately delineated by any federal
or state court decision,” He wrote. Therefore, the judge concluded,
“[t]he city’s counterclaim presents novel questions of state
or local law, which militate strongly against exercising supplemental
jurisdiction” (Bray vs. The City of New York: 16). Pauley noted
that the bikers were right to claim that they have the same rights to
use the streets as cars do. Two bikes in a row is not a procession,
it is traffic?exactly the argument Critical Massers have made for years.
“We believe that the judge was legally correct, and hopefully
the strength of his legal argument will deter the city from seeking
to appeal,” stated Siegel (quoted in Associated Press, 2004).
But the city said that it would appeal the decision. For the bikers,
the final ride of the year, on New Year’s Eve, was a thrilling
victory lap with no arrests.
March and April 2005: The City Responds- Muzzling Dissent
As the winter turned to spring, however, there were more arrests. In
March 2005, the city responded with another effort to control the Critical
Mass ride, filing a new lawsuit in state court. This time, their strategy
resembled the attack on stickering discussed earlier in this essay.
They sought to prohibit primary organizers with TIME’S UP! from
speaking out about the ride, thus muzzling those speaking out against
the city. The city’s actions could set a precedent that would
allow the police to set the terms for the number of people who assemble
in a city park. If the city wins, the police would be allowed to disperse
any gathering it wishes if 20 or more people are in attendance (Karmazin,
Once again, attorney Siegel responded to the charges presented by the
city. “No court has said that it’s unlawful to stand in
Union Square Park without a permit,” he explained. “If the
City of New York succeeds here, it would have huge implications for
social protest movements, not only in New York, but throughout America,”
Siegel continued. “For example, the idea that SCLC [the Southern
Christian Leadership Conference, [and]Dr. [Martin Luther] King could
not publicize and tell people to gather, to sit in at lunch counters,
would have been unlawful at the time. People were challenging the idea
of segregation. So the idea that you could not publicize the gathering
to challenge unlawful laws is alien to what American history is all
about and we will vigorously oppose that in the state court” (Siegel,
Eugene Karmazin, a Critical Mass supporter, wondered how long the NYPD
could continue to battle with the citizens of the city they are charged
to support. “To suggest that the maintenance of a political prerogative
justifies the NYPD’s recent behavior would be insufficient,”
he wrote. “A more plausible logic might say that once defied,
police forces will move to reestablish their authority, often with crushing
force” (Karmazin, 2005).
During the April ride, Bruce Smolka, an assistant police chief, confirm
Karmazin’s thesis. Times UP! organized rally called, Still We
Speak rally, as a rickoff rally before the April 29th ride. After a
parade of testimonials – from Rev. Billy, Norm Siegel, and others
- on the importance of the First Amendment – Smolka’s response
was to personally and violently arrested a by standard at the pre ride
rally. “You’re riding your bicycle on the sidewalk,”
Smolka is said to have declared. “You’re under arrest.”
The New York Times captured the searing image of the officer who had
once presided over the Street Crimes Unit which who put 41 bullets in
Amadou Diallo and later made the order to start arrests at the Carlyle
Group in April 7, 2003 during an anti war protest (to be discussed later
in the essay) (Fahin and Dwyer, 2005; Naparstek, 2005; Wasserman, 2005).
From Diallo to the Carlyle Group to Critical Mass, the new ‘zero
tolerance’ policing is a threat to human life, peaceable assembly
and by extension, democracy itself. In the case of Critical Mass, after
10 years of relatively peaceful rides, the city’s case against
the rides speaks to a core questions about the use of public space,
the fate of activism, and creative direct action in the era of the Patriot
Preemptive Arrest, Control, and Demonization of Protest
If the stories of arrests for stickering or biking suggest anything,
they merely confirm a point that has already become obvious. In the
Patriot Act era, civil disobedience and activism face countless challenges.
The powers-that-be had long sought to redefine protest groups that employ
civil disobedience?such as Earth First! and Reclaim the Streets?as terrorists
in previous years. Yet with the military/corporate/ entertainment/police/prison-industrial
complex in high gear as immigrants were detained and war coverage entered
a 24-hour news rotation, the job became that much easier after the attacks.
This panic like atmosphere only aided the passage of the USA Patriot
Act without much deliberation. And funding for the military, policing,
and security structures increased exponentially.
The pattern was nothing new. In periods of social and economic crisis
and flux, such as after 9/11, panic triggers shifts in how protests
• from acceptance to surveillance
• from tolerance to criminalization
• from a liberal emphasis on equality toward a coercive emphasis
In the era of the Patriot Act, panic has been used to justify encroachments
on civil liberties not seen since the internment of Japanese-American
citizens during WWII. This panic has vastly limited constitutionally
protected democratic political participation, including the right to
civil disobedience. If the Patriot Act is made permanent (as it appears
it will be), the law may be remembered for restricting civil disobedience
in much the same way as the Taft-Hartley Act of 1947 restricted labor
Panic over Public Space?the Mods vs. the Rockers, Police vs.
In the days after 9/11, panic over public space
and the movement of those within it increased, and restrictions on the
public commons grew. “Perhaps the most dangerous element of the
Bush Administration’s current campaign against democratic rights
has been the deliberate manipulation of mass public hysteria,”
Columbia University professor Manning Marable (2003) explained, pointing
out that 1.9 million new prescriptions for Zoloft, Prozac and other
antidepressants were filled after the terrorist attack. “The American
public has been bombarded daily by a series of media-orchestrated panic
attacks, focusing on everything from the potential threat posed by crop-dusting
attacks being used for “bio-terrorism,” to anthrax-contaminated
packages delivered through the U.S. postal service” (Manning 2003:
9). Thus, panic is used as a tool by the elite for the control and manipulation
of public space and opinion. In most circumstances, these panics function
as a vast distraction. “In service of the new militarism, all
other concerns, including poverty and constitutional protections such
as civil liberties and civil rights?indeed, the right to dissent from
official policy?are not only subordinate to the advancing war machine
but have become suspect on patriotic grounds,” Arronowitz and
Gautney contend (2002: xxx). Within this context of panic, the War on
Terror has replaced the Cold War as America’s latest permanent
As noted above, this process is not new. Panics, red scares, and public
hysteria have long been part of American political discourse. “What
happens when our pragmatic, commonsense, split-the-difference American
politics turns righteous?” political scientist James Morone asked
in his recent book, Hellfire Nation (2003: x). The answer is simple:
checks and balances become little more than nuisances, and hysteria
is used to manipulate public opinion. Compromise disappears; in its
place, lynchings, witch-hunts, “get-tough” laws, and race
riots follow. Protestors become “terrorists.” Labels, demonology,
and zero-sum arguments win the day as political players are divided
between “us” and “them,” and panic takes precedence
over reasoned discourse. The process follows a familiar schema. In times
of social flux, interest groups: 1) stir up a moral frenzy, 2) identify
a demon, 3) mobilize interests, and 4) increase police powers (Morone,
2003). These “panics,” which can be traced to the country’s
earliest days, “tap into deep-seated fears of socially dispossessed
elements, such as youth, racial and ethnic minorities, and the sexually
ostracized” (Shevory, 2004: xv).
In the Patriot Act era, protesters fit into a panic structure outlined
by sociologist Stuart Cohen (1972). For Cohen, this collective behavior
involves a distinct sequence of events that make up a panic script.
A dramatic event is followed by a public outcry, “moral entrepreneurship,”
and the mobilization of control culture (1972: xxiv). In studying the
responses to the appearance of the Mods and the Rockers, two highly
stylized British youth groups that ran free on beach boardwalks during
bank weekends from 1964 to 1966, Cohen recognizes that much of the anxiety
surrounding the groups arose in anticipation of a potentially disastrous
situation. People feared the shifting social mores, sexual licentiousness,
and potential for property destruction that accompanied the youths’
comings and goings. For the Mods and the Rockers, the result of the
panic was a new set of control mechanisms to curtail their movements.
Contention over use of public space often triggers such a response.
In the years after the 1999 protests in Seattle surrounding a meeting
of the World Trade Organization (WTO), a similar type of collective
anxiety came to accompany the expected appearance of so-called “violent
anarchists” at convergence actions. This anxiety generated a similar
level of public outcry. Moral entrepreneurs?such as police, the media,
and public officials?demonized anarchists as “terrorists”
in order to justifying surveillance and the mobilization of control
A November 5, 2004, editorial in a New York City tabloid promoted the
image of Critical Mass bikers as “hooligans,” providing
a rationale for stepped-up surveillance (Storozynski, 2004). Such demonization,
of course, justifies preemptive arrests of activists and others unlucky
enough to be caught in the crossfire. Likewise, on May Day 2000, the
NYPD preemptively arrested a group of anarchists wearing black bandanas
standing in Union Square even before the day’s march began. Kauffman
(2000) described the scene. “All around Union Square, the starting
point for the march, the police amassed, literally by the thousands.
Rows upon rows of cops in riot gear stood in military formation everywhere
you looked. Some were carrying the suddenly ubiquitous canisters of
pepper spray and tear gas; most had big bundles of plastic handcuffs
hanging from their belts, as a none-too-subtle threat.” For Kauffman,
“This obscenely excessive show of force was intimidating.”
Yet, it had its effect – to demonize those involved in protest.
The chosen panic scapegoat becomes a “folk devil” onto whom
cultural anxieties may be projected. In Cohen’s study, the folk
devils were youth subcultures. After Seattle, the folk devil became
anarchist protestors who inspired widespread negative reaction (Cohen,
1972,15-17). In the days following the 9/11 terrorist attacks, the demonization
and surveillance of those who were thought to represent a potential
threat to public order became that much easier to justify.
In the days before the August 2004 RNC in New York City, a similar type
of hysteria accompanied the expected protests surrounding the convention.
“Anarchists Hot for Mayhem,” read a New York Daily News
headline in August (see O'SHAUGHNESSY, 2004). The article reported that
“50 of the country’s leading anarchists” and their
followers planned to converge in town for the convention protests. A
similar story from the New York Post announced, “Finest Prep for
Anarchy,” (see New York Post, 2004). This story included descriptions
of “high-profile, radical” activists. Immediately before
the protests, ABC’s “Nightline” and FOX News displayed
photos of a number of activists—some of whom had already been
mentioned in the Daily News story. The Nightline piece used the words
of the police to describe activists organizing against the RNC as “troublesome,
even dangerous, anarchists who infiltrate other groups of demonstrators
and then try to provoke violence” (Anderson, 2004). Hence, the
police and the media functioned as moral entrepreneurs to mobilize sentiment
against the protestors, to demonize them, and to justify surveillance
of their activities (see Lichtblau, 2004).
“Protest panic” is just the latest in a long series of red
scares and similar forms of public hysteria, which occasionally bubble
up from the primordial fear that too often grips the American psyche.
These panics tend to follow a simple pattern. Interest groups stir up
a frenzy using the media, identify protestors as violent and a threat
to the larger good, and mobilize political opposition to all but the
most staid and controlled forms of ceremonial protest, while increasing
surveillance of dissent and justifying total control of those thought
to pose a threat to the common good (see Graeber, 2004).
Breaking Through the Panic?an Anti War Movement Grows
Yet despite the mobilization of public panic and the resulting increase
in repression, activist opposition remained strong. In the years after
9/11, activists have struggled against the ideological uses of the Patriot
Act and its restrictions on movement in public space. But they often
faced formidable obstacles. UFPJ fruitlessly fought for a permit for
an antiwar march in New York City on February 15, 2003, only to see
its case dismissed as a security threat. Within the context of the War
on Terror, the competing narratives of this struggle involve activists
being labeled as terrorists and debates over democracy versus state
control. In December 2001, Attorney General John Ashcroft claimed that
those who opposed his draconian approach to challenging terrorism “only
aid terrorists.” It was yet another example of a panic script
used to justify encroachments into the public sphere.
As the antiwar movement grew, barriers to protest only increased. Activists
faced a barrage of threats from the NYPD (Gootman, 2003; Lee, 2003;
NYACLU, 2003). Yet this did not stop them from continuing to use civil
disobedience to oppose the war. In the days following the February 15
antiwar action?which went forward despite lacking a permit?activists
succeeded in blocking city streets in front of Rockefeller Center with
an ACT UP-style “die-in” on March 27, 2003 (Associated Press,
2003; Yaniv and Ortega, 2003).
Throughout the days preceding the start of the Iraq War, the use of
pre- emptive arrests against activists increased. On April 7, two weeks
after the striking March 27 action, police preemptively arrested activists
involved in a similar protest against the Carlyle Group, a defense-related
investment firm with financial ties to the Bush and Bin Laden families.
Over 70 protesters were illegally arrested outside the offices of a
Carlyle Group affiliate (Dewan, 2003). Throughout the day, activists
charged that they were interrogated about their political beliefs using
demonstration debriefing forms, which was later ruled unconstitutional
(Rashbaum, 2003a,b). That same day on the West Coast, police used crowd-control
methods including wooden and rubber bullets, injuring activists from
Direct Action to Stop the War protesting against shipping companies
involved in the war effort at the Oakland docks (Murphy, 2003; Solnit,
In the history of civil disobedience, the use of preemptive arrests
of activists who police suspect will employ civil disobedience is a
new threat. Many activists over the years have been brutalized during
and after protests. But the notion of surveillance and pre-demonstration
arrests of activists who police suspect might engage in disorderly conduct
even before they have done anything radically alters the playing field.
Eric Laursen, whose photo was featured in the ABC story about anarchists
planning the RNC protests, explained, “I had not been charged
with any crime at the time those photos were shown...I haven’t
since. [Showing those photos] inferred we incited violence. That’s
out-and-out character assassination” (Anderson, 2004).
Larson was not the only organizer identified who suffered personal and
professional repercussions during or after the RNC protests. Take David
Graeber, an anthropologist at Yale University who worked along with
Larson and myself and a number of others organize the A31, 2004 direct
action events. Graeber was dismissed from his position at Yale the following
academic year (see Frank, 2005). His explanation of his situation elaborates
on the use of panic to isolate and demonize organizers: “If I
had to get analytical about it, maybe I'd put it this way... It used
to be as long as you didn't challenge the corporatization of the university,
you'd be basically okay. But the neoliberal project - where the politicians
would all prattle about "free markets and democracy" and what
that would actually mean was that the world would be run by a bunch
of unelected trade bureaucrats in the interests of Citibank and Monsanto
- that kind of fell apart. And of course the groups I've been working
with - People's Global Action, the DANs and ACCs and the like - we had
a lot to do with that. It threw the global elites into a panic, and
of course the normal reaction of global elites when thrown into a panic
is to go and start a war. It doesn't really matter who the war's against.
The point is once you've got a war, the rules start changing, all sorts
of things you'd never be able to get away with otherwise become possible,
whether in Haiti or New Haven. In that kind of climate, nasty people
start trying to see what they can get away with. "Fire the anarchist
for no particular reason? Maybe that'll work," (quoted in Frank,
And certainly the rules were changing. The precedent of activists being
demonized, detained, and isolated before protests even begin has been
adopted across the country. This model was first really seen during
protests against the International Monetary Fund (IMF) in 2000 and 2002
(Blummer, 2005). It came of age with the FTAA protests in Miami in the
fall of 2003.
The Miami Model
In November 2003, labor, AIDS, and global justice activists converged
to oppose the meetings in Miami, Florida, of trade ministers from 34
countries who gathered to negotiate the Free Trade Area of the Americas
(FTAA). To the protestors, the FTAA appeared to be another trade deal
that could weaken the hand of labor, hurt the environment, and weaken
public services including health care and education, while curtailing
the rights of indigenous people across the Americas. In response to
their grievances, the thousands of activists who gathered in Miami to
protest against the FTAA were met with a phalanx of some 2,500 riot
cops from 40 law enforcement agencies, coordinated by the U.S. Department
of Homeland Security. Protesters were doused with pepper spray, shot
with rubber bullets, hit with batons, and shocked with electric tasers
and shields. “They can beat the rap, but they can’t beat
the ride,” a Miami police officer explained.
For activist Beka Economopolis, who was at the protest with UFPJ, the
police response “sums up the emergent strategy in this country
for dealing with dissent. It involves a pattern of high-profile clashes
in the streets, bogus arrests, trumped up charges, excessive bails,
and subsequent civil suits and dismissals in courts.” The implication
was simple: activists would be arrested on trumped up charges and removed
from the streets?regardless of whether they were innocent or not. Economopolis
was certain that the illegal arrests and bogus charges could be easily
beaten. She was not, however, convinced that these police practices
did not discourage others from participating. “This chilling effect
remains: civil liberties are trampled, lives are disrupted, and a deterrent
is delivered.” This aggressive policing approach has come to be
known as the Miami Model of protest control. The Miami episode cast
an ominous shadow on the RNC protests planned for the following summer.
Setting the Stage for the RNC
In order to set the terms for the RNC protests, in the summer of 2004
civil rights attorneys from the Center for Constitutional Rights (CCR),
a nonprofit legal organization based in New York, filed a multi-plaintiff
federal lawsuit on behalf of protesters who were illegally arrested
during the Carlyle Group antiwar rally on April 7. The suit charged
that the NYPD unlawfully arrested peaceful protesters and detained them
for excessively long periods of time at One Police Plaza.
“The Carlyle arrests are part of a pattern of NYPD harassment
in which lawful demonstrators are arrested and jailed with the short-term
goal of clearing them off
the streets and the long-term goal of deterring them and other New Yorkers
from participating in future demonstrations,” said CCR’s
Nancy Chang. Plaintiffs’ lawyers, CCR, and the law firm of Emery,
Cuti, Brinckerhoff, and Abady hoped this lawsuit would help to break
the pattern of intimidation as activists prepared to protest the RNC.
The charges against all the plaintiffs were dismissed. One plaintiff,
Sarah Kunstler, was held for 12 hours and charged with two counts of
disorderly conduct. “It was frightening to learn how easy it is
to be arrested without warning and hauled away for peacefully exercising
your free speech rights,” she said. Aside from unspecified monetary
compensation, lawyers sought a declaration from the court that the NYPD’s
actions on April 7 were retaliatory and unconstitutional. Later, some
90 percent of the charges against activists were dropped once the RNC
protests were over, as police were often unable to substantiate their
claims. In many cases, the police were found to have lied, omitted information,
and misrepresented evidence (Dwyer, 2005)., Currently, the New York
District Attorney’s office is being investigated for supporting
numerous unsubstantiated claims against U.S. citizens.
The Future of Creative Protest
In this year after the RNC protests, the need for creative protest,
art and other expressions of joy has remained an imperative –
especially as activists seek to articulate visions of the world they
hope to create rather than one they merely oppose. Like any form of
direct action, such practices still face countless threats today. In
this era of the Patriot Act era, such forms of playful, unthreatening,
yet still subversive engagement become more tactically useful for political
messaging and fun for political actors and bystanders alike. When these
actions are linked to tangible goals, well-targeted creative direct
action are still useful as a tactic and a way of being in the world.
The point remains that activists must continue to reinvent their approaches
toward organizing for social change. “We need to think creatively
in order to combat these tactics that have been repeated over and over
at mass demos in the past few years,” explained Kris Hermes, who
demonstrated against the RNC on the floor of Madison Square Garden with
10 other members of ACT UP during the RNC protests. “At nearly
every one you see indiscriminate mass arrests—media, legal observers,
people providing medical assistance…round ‘em up. They send
a message that it’s not OK to protest on our streets. A fiercer
offensive attack against those types of [police] tactics is what I think
needs to happen. How you do that legally is where we need to go back
to the drawing board.” Like many, Hermes suggested that activists
would be well advised to work toward spontaneous disruption rather than
permitted protests and large convergence gatherings.
Terra Lawson-Remer of Operation Sybil, another RNC direction action
group, agrees with the call for new approaches to creative protest.
Along with a small affinity group, she rappelled from the roof of the
Plaza Hotel on August 26 and dropped a banner reading “TRUTH”
with an arrow pointing in one direction and “BUSH” with
a second arrow pointing in the other, similar to the “WTO”/“DEMOCRACY”
opposing arrows banner witnessed during the Seattle WTO protests in
1999. “It was a personal risk, including the very real risk of
getting arrested,” Lawson-Remer reflected after she was released
from jail. “It demonstrated that we were serious, that we cared
enough about this that we were willing to risk our futures” (Kamenetz,
As for the transformative possibilities for direct action in the liberatory
zones beyond the protest pens hoped for during the RNC protests, their
vitality as temporary autonomous zones remains tenuous as surveillance
and preemptive arrests slow the work of activists. Just months after
the RNC protests, a group of activists filed suit against the City of
New York on behalf of those arrested, charging that the department had
sought to punish them for their political views. “During the Republican
Convention, the mayor and the Police Department suspended the Bill of
Rights for those who chose to protest the foreign, military, and domestic
policies of the United States government. The rights to free expression,
to be free from arrest lacking probable cause, to a prompt arraignment
and release, and to be free from conditions of confinement that were
inhumane were arrogantly trod upon by [Mayor Michael] Bloomberg and
[Police Chief] Kelly, and others,” explained Jonathan Moore, one
of the lead attorneys representing the protesters. “These actions
by the NYPD speak to an overall policy, put in place by the top leadership
of the department, to chill and punish political protest. It is an outrage,”
said another lawyer on the case, Martin Stolar, president of the New
York City Chapter of the National Lawyers Guild.
The city was later forced to settle the lawsuit. Already, a backlash
against this form of preemptive arrest is emerging. For example, the
Washington, D.C., City Council recently passed the “First Amendment
Rights and Police Standards Act,” which specifically aims to curtail
the demonization of dissent. If free speech is to survive, other municipalities
will need to push to outlaw preemptive detention (Blumner, 2005). The
New York City Council is already considering a similar piece of legislation.
In the End…
Narratives linking protesters with terrorists and dissent with lack
of patriotism seem to accompany a new form of thought control. As capital
intersects with state power, the system appears more than capable of
absorbing disruptions. Nevertheless, protest remains imperative. And
when done effectively?with disciplined research, a clear target, and
a well-communicated, winning strategy?it still remains effective. In
the age of terror, the capacity of civil disobedience to disrupt the
everyday mechanisms of power appears vastly restricted. For this reason,
prefigurative, joyful, community-building protest is more essential
than ever. If anything, we need this to live, feel pleasure, and carry
forward. In the tragicomic theater of contemporary urban life, we need
as many playful responses as we can create. Between street parties and
bike rides and playgrounds, advocacy and personal fun, the possibilities
of public space and by extension democracy itself remain both paradoxical
and compelling as ever.
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