Academic journal article The Journal of Gender, Race and Justice

Protecting the President from Protest: Using the Secret Service's Zone of Protection to Prosecute Protesters

Academic journal article The Journal of Gender, Race and Justice

Protecting the President from Protest: Using the Secret Service's Zone of Protection to Prosecute Protesters

Article excerpt


On October 24, 2002, President George W. Bush visited Columbia, South Carolina.1 Brett Bursey, a fifty-six-year-old and long time peace activist, came to see the President that day, and took a spot at an intersection near the Columbia Metropolitan Airport with a sign that read "No War for oil."2 Bursey claimed that he was surrounded by others who were also waiting for the President to arrive-both supporters and protestors.3 Bursey freely admits that he was not in the designated "free speech zone" approximately three-quarters of a mile away from where the President would be arriving.4

Bursey claims he was not looking for confrontation, and when die Secret Service asked Bursey to move from his spot, he obeyed.5 However, when Bursey refused to disappear completely, local law enforcement officers arrested him and charged him with violating a local trespassing ordinance.6 South Carolina authorities quickly dropped this charge because Bursey stood on public ground.7 But Bursey's footing on public ground did not save him from federal charges.8 In December 2002, Assistant United States Attorney Strom Thurmond, Jr. presented Bursey with a federal bill of information alleging that Bursey violated Title 18 § 1752(a)(1)(d) of the U.S. Code.9 Congress passed this rarely cited portion of the U.S. Code during the late 1960s to protect high public officials from assassination attempts.10 This statute gives the secret Service the authority to create restricted access zones preceding presidential visits, such as the zone Bursey allegedly violated on the day of the President's October 2002 visit to Columbia.11 A United States magistrate convicted Bursey of violating § 1752 in January of 2003, fining him $500.12 The U.S. District Court for the District of South Carolina (Columbia) affirmed the conviction, and Bursey is now considering appealing to the Fourth Circuit Court of Appeals.13

Bursey's case is not an isolated incident-other protesters have also been arrested for violating secured zones on presidential visits and other national political events.14 Though federal prosecutors drop most charges in such cases, there are numerous examples of the secret Service prohibiting peaceful protesters from protesting in nominally "restricted" areas.15 For example, secret Service officers arrested an American soldier's mother who donned an anti-war t-shirt at a New Jersey speech by First Lady Laura Bush.16 Similarly, in West Virginia, the secret Service detained a married couple for wearing anti-Bush shirts at a 2004 Independence Day presidential rally.17

How can the government balance the need to respect and protect free speech with its compelling interest of providing security at presidential visits and other such events? In considering that question, this Note examines the constitutionality of the application of § 1752 under the public forum doctrine. Under the public forum doctrine, public spaces such as streets and parks have "immemorially" been used for "discussing public questions," and the public enjoys a general right of access to these areas.18 When streets and parks are completely shut down for presidential security, they are no longer public forums due to the security measures that must be taken to protect the President.19 Therefore, in theory, the public temporarily cedes its general right of access to these areas in the interest of presidential security.20

This Note argues that the "restricted" area created by the secret Service during the President's 2002 visit to Columbia, South Carolina was a "designated public forum." As a designated public forum, speech restrictions within the restricted area should have been content neutral, unless justified by strict scrutiny analysis. Furthermore, time, manner, and place restrictions imposed on the public's speech in this case should have been subjected to intermediate scrutiny review. This Note argues that the secret Service's recent application of § 1752 to Bursey was unconstitutional because, although the text of the statute is content neutral and thus could be applied as a valid time, manner, and place restriction in a public forum, in Bursey's case the statute was (1) arbitrarily enforced, (2) applied in a viewpointdiscriminatory manner, and (3) left no adequate alternatives open for Bursey to convey his message. …

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