Precedent undermines free-speech argument

On St. Patrick’s Day, Elizabeth Fineron was on a mission: to get arrested.

After being dragged by police out of the way of a downtown Colorado Springs parade on March 18, which left her with two large road-rash welts, the 65-year-old told several officers to arrest her. After poking one in the shoulder three times, she got her wish.

She wanted to be arrested like six other war protesters forcibly removed from the parade because, she said later, “It was the only way I could go to court.”

Tuesday, another wish will be granted when the seven protesters are arraigned in Colorado Springs Municipal Court. Each faces a misdemeanor citation of failing to desist or disperse.

Fineron said that will be a venue for her and the others to air claims that police used excessive force and that their freedom of speech rights were violated when parade organizers forbade them from marching.

They face a difficult legal struggle, at least with regard to the freedom of speech claims. In a 1995 case, the U.S. Supreme Court upheld the rights of private parade organizers to exclude anyone. That case involved the Boston St. Patrick’s Day parade keeping out gays and lesbians, said Richard Collins, a professor of First Amendment law at the University of Colorado School of Law.

“The Supreme Court said, ‘It’s a private group. It’s their right. It’s their speech. They don’t have to share the podium with anybody,’” Collins said.

David Hudson, an attorney with The First Amendment Center at Vanderbilt University, said courts have strongly upheld the rights of private parade organizers set forth in the 1995 Boston case, to the point that dissenting groups wishing to march behind a parade must be a mile back from the authorized marchers.

“The principles of (the 1995 decision) are pretty clear that the sponsors of the parade basically have the authority to choose what to say and what not to say,” Hudson said.

Eric Verlo, chairman of the Pikes Peak Justice and Peace Commission, registered an entry in the Colorado Springs parade under the name of his business, The Bookman. His bookmobile was joined by more than 40 people, some carrying anti-war signs.

But the parade bans promotion of “social issues,” and before the protesters made it two blocks, organizers ordered them out, then called police. Officers forcibly removed seven who would not leave, including some who sat down in the street.

One officer did a “dry fire” with a Taser gun, firing it into the air to disperse protesters, according to a recently released police report. Another used a “jaw hinge push,” a type of choke hold, while removing a protester. Verlo was pulled from his bookmobile, set on the street and handcuffed.

The protesters were cited and released. Fineron was evaluated at an area hospital.

Police are conducting an internal investigation into the incident and would not comment. The officers involved remain on duty.

Several protesters said last week they were not refusing to leave but trying to understand why they were being ordered out.

“It really wasn’t made clear to me about why we were being asked to leave,” Verlo said. “There was nothing that was made clear to anybody.”

Verlo said a similar group marched in the St. Patrick’s Day parade last year in Old Colorado City, though it had half the participants and fewer signs.

The protesters have not hired attorneys. The Colorado chapter of the American Civil Liberties Union is looking at the case, said state legal director Mark Silverstein.

It is unlikely any arguments about excessive force or freedom of speech will be heard during Tuesday's arraignment.

And even if the case reaches trial, it will probably focus solely on whether the defendants failed to disperse and not on their First Amendment rights, Collins said.

The protesters can argue freedom of speech, and may also file civil lawsuits, but Collins doubts they would sway a federal judge.

“I find it hard to see a real free-speech issue,” he said.

The parade was run by John O’Donnell, a professional event organizer who has put on numerous parades in Colorado Springs.

Although courts have determined that marching in parades is a form of speech, they have also ruled that private groups organizing them are not subject to the First Amendment. The St. Patrick’s Day parade is not city-sponsored, like some local parades.

When police officers stepped in, Collins said, they were doing the same thing they would in any dispute between private groups.

“The city here hasn’t determined what someone can say. It’s just enforcing a private agreement,” he said.

The permit issued to O’Donnell states he is responsible for paying for police overtime and the clean-up, insurance and other costs of the parade, and that officers can remove “any person who in their judgment appears to be disruptive to the event.”

Some protesters were surprised the parade is privately organized.

“I’ve never heard of a parade belonging to one person. I’ve always thought it was a city parade,” Fineron said.

O’Donnell said the parade bans “social issues” to avoid a political forum, though political candidates are allowed to take part.

CONTACT THE WRITER: 476-1605 or scott.rappold@gazette.com

OTHER ARRESTS OF PROTESTERS

The arrest of seven war protesters in the St. Patrick’s Day parade was the latest in a long string of such incidents.

With a large number of military installations, including Fort Carson, NORAD, Peterson and Schriever air force bases and the Air Force Academy, protest groups often come here, some with the goal of being arrested.

Some other notable incidents:

April 14:

Ten gay-rights activists from Soulforce Equality Riders were escorted off Air Force Academy grounds after intentionally violating military rules against demonstrations on bases as part of nationwide protests against institutions that prohibit openly gay students.

Aug. 5, 2005:

Three war protesters — including a Catholic nun — were arrested while trying to walk onto Peterson Air Force Base to pray at the chapel.

They were among 55 protesters at an event sponsored by the Sisters Witness Against War, a group started by Roman Catholic nuns in Colorado Springs.

October 2003:

Colorado Springs police cordoned off a twoblock area around The Broadmoor hotel for a North Atlantic Treaty Organization conference, attended by defense ministers from 27 nations. About 80 protesters were kept in a narrow strip along Lake Avenue, blocks from the hotel.

The American Civil Liberties Union sued the city on behalf of the protesters, claiming free-speech rights were violated, but lost in federal court.

Feb. 15, 2003:

Police fired tear gas and pepper spray to break up a crowd of 2,000 war protesters at Palmer Park after some demonstrators blocked traffic on North Academy Boulevard.

Thirty-four protesters were arrested there and near Peterson Air Force Base, where another demonstration occurred. Several were arrested at a nearby Dairy Queen, after officers threatened to arrest anyone there not ordering food, according to protesters’ accounts.

June 2002:

Three environmental activists were arrested after sneaking onto The Broadmoor hotel property to unfurl a banner during a lumber wholesalers’ convention, while more protested outside.

The ACLU later claimed that authorities took down license plate numbers of participants and put their names in domestic terrorism files.