DENVER, COLORADO- We heard on Friday that US judge William Martinez needed more time to craft an opinion on a temporary injunction of DIA’s enforcement of their free speech permit. He commited to a decision early this week, and frankly we don’t know what to expect. From challenges he posed to attorneys at Wednesday’s hearing, the judge appears to think DIA needs some degree of “notice” about potential disruptions. He is unlikely to rule against the permit altogether because he opened the hearing already proclaiming that DIA is a “not a public forum” and thus has discretion about what expression to allow. DIA can limit subject matter, but not viewpoint, and can constrict assemblies. Judge Martinez’s starting point was based on US Supreme Court precedent set at JFK and Dulles airports, ignoring that both of those facilities are decentralized and lack DIA’s literal public square. Ironically, neither JFK or Dulles attempted to quash their Muslim Ban protests as did DIA. I’d like to mention some other details revealed at the preliminary injunction hearing.
For starters, the person in charge of approving permits has a highy subjective attitude about viewpoint. To him, pro-military messages are not oints of view at all, they’re just patriotic. They don’t require permits. Also, his department hasn’t declined to issue permits. They work with applicants to arrive at accommodations suitable to the airport. For example, the American Islamic Society was recently granted a permit, the airport requires they limit their participant numbers to FOUR.
DPD Commander Tony Lopez explained why he needs advance notice of protest actions, to be able to schedule officers without having to pay short-notice overtime. Lopez revealed that his optimal staffing numbers are a one to one ratio with activists. Small wonder he was demoted to DIA from downtown District Six. Lopez also testified that he often threatens to make arrests “as a ploy” to make a crowd disperse. And “it usually works” he said. A next step is to mobilize his officers to appear to be targeting particular activists, to increase the intimidation, without an actual intention of making arrests, or justifying them. His testimony confirmed what I described to the court, of officers often threatening to arrest us, even when they had no legal basis, and telling us we needed a permit when none was required.
From the attitude of the city attorneys and the DIA personnel, one became uneasily aware that administrators don’t even blink at sacrificing civil liberties for the interests of security. If airport surveillance can’t size you up as either a traveller or meetor-greetor, they can’t predict your behavior and you’ve suddenly become a security risk. Airport customs and TSA lines are already areas inhospitable to personal freedoms. Apparently airport managers would like all their hallways and public centers to be as restricted. If cops had their way, public streets and sidewalks would be single-purpose conduits as well.
We await a federal judge’s ruling for now, with optimism in judgement superior to that of petty administrators, city lawyers and police. Seeking protection from the courts is contigent on the premise that if needed, the wisdom of the US Supreme Court could be brought to bear. Of late it’s hard to regard those justices as the brightest minds or uncorrupted. We have the Citizens United decision as an example. To which I would add, the terrible compromise that airports are not public forums.
As President Trump considers a follow-up executive order to replace his first Muslim Ban now stymied by the courts, it’s interesting to note we just marked the anniversary of FDR’s order to put Japanese-Americans, the “others” of his day, into internment camps. The supreme court of his day upheld his order. Technically that legal precedent still stands.