“Comfort Women” aren’t unique to Japan and Korea. In the US military they’re called service women.

As a South Korean court decides that Japan owes more compensation to the Korean women it abducted during WWII to serve as “Comfort Women” for the Japanese troops, Americans should own up to the reality that all militaries rely on involuntary prostitution and gang rape to motivate their soldiers.

From antiquity through the Napoleonic Wars, through America’s Civil War to its imperial conquests westward and abroad, and until World War One immobilized warfare, “comfort women” were called “camp followers.” US servicemen in Vietnam established a sex industry in Southeast Asia that is fertilized still today by veterans of all nationalities. But while America’s Defense Department outsources more and more of its functions to contractor profiteers, it has moved the sexual services in-house. This shifts the customary impact on victim populations unto another consumable pool of sexual prey called FELLOW SOLDIERS.

In brief the scheme is simple: Recruit young women, let male soldiers to rape them, replenish as needed. Mission Accomplished as they say. Among your female grunts, purge would-be careerists to ensure you are trafficking in only the age of vulnerability suited to your comfort-seekers. That perverse finess is of course the giveaway.

In the US military, 100% of women are sexually harassed or raped. Officials say the figure is 70%, or they discount attacks as cases of harassment and not rape. This allows service women who chose not to report their rapes to save face, and it ameleorates the stigma which otherwise would fall on every woman in uniform. Like the single blank bullet issued to firing squads to ease the conscience of every member allowing them to believe their gun did not chamber a live and fatal bullet. The confidential medical records say the frequency of sexual victimhood is actually 90%, but that suggestes an improbable paucity of unreported cases. In the civilian world, it’s believed that half of all rapes go unreported. Assuming a correlation, how can you have twice as many as 90%?

Besides addressing the rape culture endemic to professioonal soldiering, a remedy suggests itself in at least pretending to care about the well being of female soldiers. For a start, America’s military branches could easily relax the basic training requirements for women. The current standards, which pander to a feminist insistance on a physical equality of the genders, quickly destroy all female recruits. The same backpack weight loads of boot camp, which eventually debilitate men’s backs and knees by the time they’re 40, cripple women before they’re 25. An obscenely high percentage of women have to be med-boarded out of active duty with destroyed backs, ankles and wrists. And the female re-enlistment rate is abysmal. You’d think the army, navy, air force and marines would want to retain trained soldiers. Unless women are more valuable to them young, untrained, and uninitiated.

Comfort Women and Camp followers suffered attrition from the natural consequences of communicable disease and abuse, allowing for a regular turnover of fresh stock. Pretending your soldiers don’t consume comfort women means having to be duplicitous about where you are dumping your bodies.

Kimya Dawson knows from where protest must burst: At the Seams.

Kimya Dawson not only nailed the essence of protests for #BlackLivesMatter. She knew in which direction the protest marches needed to push. Toward our system’s seams. If you are having trouble finding the lyrics of her song about HANDS UP DON’T SHOOT I CAN’T BREATH, it’s because it’s called At the Seams.

I’ve taken the liberty to reformat Dawson’s brilliant lyrics to unpack her references and simulate her cadence.

AT THE SEAMS by Kimya Dawson

1.
Left hands hold the leashes
and the right hands hold the torches,
And Grandpas holding shotguns
swing on porch swings hung on porches,
And the Grandmas in their gardens
plant more seeds to cut their losses,
And the poachers,
with the pooches
and the nooses,
preheat crosses.

And the pooches see the Grandpas
and they bare their teeth and growl,
While their owners turn their noses up
like they smell something foul,
And they fumble with their crosses
and they start to mumble curses,
And they plot ways
to get Grandpas
off of porches
into hearses.

But the Grandpas on the porches
are just scarecrows holding toys,
And the Grandmas in the gardens
are papier-mâché decoys,
While the real Grandmas and Grandpas
are with all the girls and boys
Marching downtown to the City Hall
to make a lot of noise,
Saying:

  Hands up. Don’t shoot. I can’t breathe.
  BLACK LIVES MATTER. No justice No Peace.
  I know that we can overcome because I had a dream-
  A dream we tore this racist broken system apart at the seams.

2.
Sometimes it seems like
we’ve reached the end of the road
We’ve seen cops and judges sleep together
wearing long white robes.
And they put their white hoods up,
Try to take the black hoods down,
And they don’t plan on stopping
til we’re all in the ground.

Til we’re dead in the ground
or we’re incarcerated
‘Cause prison’s
a big business form
of enslavement
Plantations that profit
on black folks in cages
They’ll break our backs
and keep the wages.

It’s outrageous that there’s no place
we can feel safe in this nation
Not in our cars, Not at the park,
Not in subway stations,
Not at church, The pool, The store,
Not asking for help,
Not walking down the street,
So we’ve gotta scream and yell:

  Hands up. Don’t shoot. I can’t breathe.
  BLACK LIVES MATTER. No justice No Peace.
  I know that we can overcome because I had a dream-
  A dream we tore this racist broken system apart at the seams.

3.
You tweet me my own lyrics,
Tell me to stop
Letting a few bad apples
ruin the bunch.
Don’t minimize the fight
comparing apples to cops
This is about the orchard’s poisoned roots,
not loose fruits in a box.

Once the soil’s been spoiled,
the whole crop’s corrupt.
That’s why we need the grassroots
working from the ground up.
And we look to Black Twitter,
to stay woke and get some truth,
‘Stead of smiling cops
and black mugshots
from biased corporate news.

‘Cause if you steal cigarillos,
or you sell loose cigarettes,
Or you forget your turn signal,
will they see your skin as a threat?
Will they KILL you, And then SMEAR you,
And COVER IT UP and LIE?
Will they call it “self defense”?
Will they call it “suicide”?

  Hands up. Don’t shoot. I can’t breathe.
  BLACK LIVES MATTER. No justice No Peace.
  I know that we can overcome because I had a dream-
  A dream we tore this racist broken system apart at the seams.

4.
Decades of cultivation start
from tiny seeds that were once planted.
And we mustn’t take the gardens that
our elders grew for granted,
Though it is up to our youth
how new rows sown are organized,
Because movements can’t keep moving
if old and unsharpened eyes
Can’t see the need to hear
what those on the ground hafta say,
In Ferguson and Cleveland,
Staten Island, The East Bay,
Charleston, Phoenix,
Detroit, Sanford Waller,
Seattle, Los Angeles,
Chicago, Baltimore.

Climbing flagpoles, Taking bridges,
Locked together to the BART,
Speaking up about injustice
in our music and our art,
Storming stages to ask candidates
when they’re gonna start
Really DIRECTLY addressing issues
BREAKING OUR HEARTS.

  Hands up. Don’t shoot. I can’t breathe.
  BLACK LIVES MATTER. No justice No Peace.
  I know that we can overcome because I had a dream-
  A dream we tore this racist broken system apart at the seams.

    Hands up. Don’t shoot. I can’t breathe.
    BLACK LIVES MATTER. No justice No Peace.
    I know that we can overcome because I had a dream-
    A dream we tore this racist broken system apart at the seams.

5.
And if the altars are torn down,
we’ll just keep on placing flowers
For the boy whose body was in the road
FOR MORE THAN FOUR HOURS.
We will honor the dead
of every age and every gender
‘Cause we can’t just have it be
the brothers’ names that we remember.

Oh black boys with skateboards,
and black boys with hoodies,
And little black girls who
are on the couch sleeping,
And all of the black trans
women massacred,
Too many black folks killed and brutalized,
And there’s no justice served.

After the lynchings of our people
by the murderous police,
Who stand like hunters ’round their prey
gasping helpless in the street,
Feet from the TEEN SISTER they tackled
and locked handcuffed in the car,
Feet from her TWELVE YEAR OLD BROTHER DYING —

WHILE NO ONE DID CPR…

6.
And we’ll keep on planting flowers,
and we’ll fight until the day
That we don’t have to pick them all
to put them all on graves.
Yeah we’ll keep planting flowers
and we’ll fight until the day
That we don’t have to pick them all
to put them all on graves.

  Hands up. Don’t shoot. I can’t breathe.
  BLACK LIVES MATTER. No justice No Peace.
  I know that we can overcome because I had a dream-
  A dream we tore this racist broken system apart at the seams.

Al Franken’s tramping with the U.S.O. comes back to bite him in the libido.

Gag photo from Al Franken USO tour
Did Senator Al Franken try to kiss subordinates he shouldn’t have? Suggesting a kiss was “my right as a celebrity” sounds like a gag, just like the photo taken during his USO tour, fondling the air around his fellow clown’s breast implants. The trouble is, beside the partisan accusations from right wing bimbo Leeann Tweeden and other dubiously provable complaints from selfie partners, the other transgressions are reported anonymously. It’s not accurate to say women “keep coming forward” to accuse Franken, when their identities are being shielded by media agencies hostile to Franken. The senator’s resignation shows great respect to the #MeToo movement, but dishonors representational politics. Of course Franken’s resignation is true to his party’s character. In DC, Democrats play the ringer who capitulates. Alabama Republican Roy Moore’s philandering is far more toxic, but God Bless Him, he’s sticking to his guns, because he dances with them that brought him. Moore doesn’t represent 13 year old girls nor victimized women. Roy Moore represents the patriarchal kleptocracy and he’s got a job to do. I applaud Franken for setting a moral example, but if I was a constituent I’d be screwed. Couldn’t Franken have scored higher politically by saying I’m a sexist wretch, like many men in power, but I’m not going to step down until our creepy president does.

Colo. US District Court judge enjoins DIA to limit restriction of free speech (grants our preliminary injunction!)

Plaintiffs Nazli McDonnell and Eric Verlo
DENVER, COLORADO- If your civil liberties have ever been violated by a cop, over your objections, only to have the officer say “See you in court”, this victory is for YOU! On January 29 we were threatened with arrest for protesting the “Muslim Ban” at Denver International Airport. We argued that our conduct was protected speech and that they were violating our rights. They dismissed our complaints with, in essense: “That’s for a court to decide.” And today IT HAS! On Feb 15 we summoned the cops to federal court and this morning, Feb 22, US District Court Judge William Martinez granted our preliminary injunction, severely triming DIA’s protest permit process. In a nutshell: no restrictions on signs, size of assemblies or their location within the main terminal (so long as the airport’s function is not impeded). Permits are still required but with 24 hours advance notice, not seven days. Below is Judge Martinez’ 46-page court order in full:

Document 29 Filed 02/22/17 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 17-cv-0332-WJM-MJW

NAZLI MCDONNELL, and
ERIC VERLO,

Plaintiffs,

v.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ,
in his individual and official capacity, and?
DENVER POLICE SERGEANT VIRGINIA QUIÑONES,
in her individual and official capacity,

Defendants.

________________________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION IN PART
________________________________________________________

Plaintiffs Nazli McDonnell (“McDonnell”) and Eric Verlo (“Verlo”) (together, “Plaintiffs”) sue the City and County of Denver (“Denver”), Denver Police Commander Antonio Lopez (“Lopez”) and Denver Police Sergeant Virginia Quiñones (“Quiñones”) (collectively, “Defendants”) for allegedly violating Plaintiffs’ First and Fourteenth Amendment rights when they prevented Plaintiffs from protesting without a permit in the Jeppesen Terminal at Denver International Airport (“Airport” or “Denver Airport”). (ECF No. 1.) Currently before the Court is Plaintiffs’ Motion for Preliminary Injunction, which seeks to enjoin Denver from enforcing some of its policies regarding demonstrations and protests at the Airport. (ECF No. 2.) This motion has been fully briefed (see ECF Nos. 2, 20, 21, 23) and the Court held an evidentiary hearing on February 15, 2017 (“Preliminary Injunction Hearing”).

For the reasons explained below, Plaintiffs’ Motion is granted to the following limited extent:

• Defendants must issue an expressive activity permit on twenty-four hours’ notice in circumstances where an applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen seven days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the permit applicant prevented timely filing of the application; ?

• Defendants must make all reasonable efforts to accommodate the applicant’s preferred demonstration location, whether inside or outside of the Jeppesen Terminal, so long as the location is a place where the unticketed public is normally allowed to be; ?

• Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Denver Airport Regulation 50.02-8) within the Jeppesen Terminal; and ?

• Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot. ??

Any relief Plaintiffs seek beyond the foregoing is denied at this phase of the case. In particular, the Court will not require the Airport to accommodate truly spontaneous demonstrations (although the Airport remains free to do so); the Court will not require the Airport to allow demonstrators to unilaterally determine the location within the Jeppesen Terminal that they wish to demonstrate; and the Court will not strike down the Airport’s usual seven-day notice-and-permit requirement as unconstitutional in all circumstances.

I. FINDINGS OF FACT

Based on the parties’ filings, and on the documentary and testimonial evidence received at the evidentiary hearing, the Court makes the following findings of fact for purposes of resolving Plaintiffs’ Motion.?

A. Regulation 50

Pursuant to Denver Municipal Code § 5-16(a), Denver’s manager of aviation may “adopt rules and regulations for the management, operation and control of [the] Denver Municipal Airport System, and for the use and occupancy, management, control, operation, care, repair and maintenance of all structures and facilities thereon, and all land on which [the] Denver Municipal Airport System is located and operated.” Under that authority, the manager of aviation has adopted “Rules and Regulations for the Management, Operation, Control, and Use of the Denver Municipal Airport System.” See https://www.flydenver.com/about/administration/rules_regulations (last accessed Feb. 16, 2017). Part 50 of those rules and regulations governs picketing, protesting, soliciting, and similar activities at the Airport. See https://www.flydenver.com/sites/default/files/rules/50_leafleting.pdf (last accessed Feb. 16, 2017). The Court will refer to Part 50 collectively as “Regulation 50.”

The following subdivisions of Regulation 50 are relevant to the parties’ current dispute:

Regulation 50.03: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO [of the Airport] or his or her designee. . . .” ?

Regulation 50.04-1: “Any person or organization desiring to leaflet, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, shall complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought and no earlier than thirty (30) days prior to commencement of the activity. The permit application shall be submitted using the form provided by the Airport. The applicant shall provide the name and address of the person in charge of the activity, the names of the persons engaged in the activity, the nature of the activity, each location at which the activity is proposed to be conducted, the purpose of the activity, the hours during which the activity is proposed to be conducted, and the beginning and end dates of such activity. A labor organization shall also identify the employer who is the target of the proposed activity.”

Regulation 50.04-3: “Upon presentation of a complete permit application ?and all required documentation, the CEO shall issue a permit to the applicant, if there is space available in the Terminal, applying only the limitations and regulations set forth in this Rule and Regulation . . . . Permits shall be issued on a first come-first served basis. No permits shall be issued by the CEO for a period of time in excess of thirty-one (31) days.” ?

Regulation 50.04-5: “In issuing permits or allocating space, the CEO shall not exercise any discretion or judgment regarding the purpose or content of the proposed activity, except as provided in these Rules and Regulations. The issuance of a permit is a strictly ministerial function and does not constitute an endorsement by the City and County of Denver of any organization, cause, religion, political issue, or other matter.” ?

Regulation 50.04-6: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.” ?

Regulation 50.08-12: “Individuals and organizations engaged in leafleting, solicitation, picketing, or other speech related activity shall not: * * * [w]ear or carry a sign or placard larger than one foot by one foot in size . . . .” (underscoring in original).

Regulation 50.09: “Picketing not related to a labor dispute is prohibited in ?all interior areas of the Terminal and concourses, in the Restricted Area, and on all vehicular roadways, and shall not be conducted by more than two (2) persons at any one location upon the Airport.” ?

Regulation 50.02-8: “Picketing shall mean one or more persons marching or stationing themselves in an area in order to communicate their position on a political, charitable, or religious issue, or a labor dispute, by displaying one or more signs, posters or similar devices” (underscoring in original).

The Airport receives about forty-five permit requests a year. No witness at the Preliminary Injunction Hearing (including Airport administrators who directly or indirectly supervise the permit process) could remember an instance in which a permit had been denied.

?Although there is no formal written, prescribed procedure for requesting expedited treatment of permit requests, the Airport not infrequently processes such requests and issues permits in less than seven days. Last November, less than seven days before Election Day, the Airport received a request from “the International Machinists” 1 to stage a demonstration ahead of the election. The Airport was able to process that request in two days and thereby permit the demonstration before Election Day.
?
——————————
1 Presumably, the International Association of Machinists and Aerospace Workers. ?
———————

B. The Executive Order

On Friday, January 27, 2017, President Trump signed Executive Order 13769 (“Executive Order”). See 82 Fed. Reg. 8977. The Executive Order, among other things, established a 90-day ban on individuals from seven Muslim-majority countries from entering the United States, a 120-day suspension of all refugee admissions, and an indefinite suspension of refugee admissions from Syria. Id. §§ 3(c), 5(a), 5(c). “The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained.” Washington v. Trump, ___ F.3d. ___, ___, 2017 WL 526497, at *2 (9th Cir. Feb. 9, 2017). As is well known, demonstrators and attorneys quickly began to assemble at certain American airports, both to protest the Executive Order and potentially to offer assistance to travelers being detained upon arrival.?

C. The January 28 Protest at the Denver Airport

Shortly after 1:00 p.m. on the following day—Saturday, January 28, 2017— Airport public information officer Heath Montgomery e-mailed Defendant Lopez, the police commander responsible for Denver’s police district encompassing the Airport. Lopez was off-duty at the time. Montgomery informed Lopez that he had received media inquiries about a protest being planned for the Airport later that day, and that no Regulation 50 permit had been issued for such a protest.

Not knowing any details about the nature or potential size of the protest, and fearing the possibility of “black bloc” and so-called “anarchist activities,” Lopez coordinated with other Denver Police officials to redeploy Denver Police’s gang unit from their normal assignments to the Airport. Denver Police also took uniformed officers out of each of the various other police districts and redeployed them to the Airport. Lopez called for these reinforcements immediately in light of the Airport’s significant distance from any other police station or normal patrol area. Lopez knew that if an unsafe situation developed, he could not rely on additional officers being able to get to the Airport quickly.

Through his efforts, Lopez was eventually able to assemble a force of about fifty officers over “the footprint of the entire airport,” meaning inclusive of all officers already assigned to the Airport who remained on their normal patrol duties. Lopez himself also came out to the Airport.

In the meantime, Montgomery had somehow learned of an organization known as the Colorado Muslim Connection that was organizing protesters through Facebook. Montgomery reached out to this organization through the Airport’s own Facebook account and informed them of Regulation 50’s permit requirement. (Ex. 32.) One of the Colorado Muslim Connection’s principals, Nadeen Ibrahim, then e-mailed Montgomery “to address the permit.” (Ex. 30.) Ibrahim told Montgomery:

The group of people we have will have a peaceful assembly carrying signs saying welcome here along with a choir and lots of flowers. Our goal is to stand in solidarity with our community members that have been detained at the airports since the signing of the executive order, though they do have active, legal visas/green cards. Additionally, we would like to show our physical welcoming presence for any newly arriving Middle Eastern sisters and brothers with visas. We do not intend to block any access to [the Airport].

(Id.) Montgomery apparently did not construe this e-mail as a permit request, or at least not a properly prepared one, and stated that “Denver Police will not allow a protest at the airport tonight. We are willing to work with you like any other group but there is a formal process for that.” (Id.)

Nonetheless, protesters began to assemble in the late afternoon and early evening in the Airport’s Jeppesen Terminal, specifically in the multi-storied central area known as the “Great Hall.” The Great Hall is a very large, rectangular area that runs north and south. The lower level of the Great Hall (level 5) has an enormous amount of floor space, and is ringed with offices and some retail shops, but the floor space itself is largely taken up by security screening facilities for departing passengers. The only relatively unobstructed area on level 5 is the middle third, which is currently designed primarily as a location for “meeters-and-greeters,” i.e., individuals waiting for passengers arriving from domestic flights who come up from the underground train connecting the Jeppesen Terminal with the various concourses. There is a much smaller meeters-and-greeters waiting area at the north end of level 5, where international arrivals exit from customs screening.

The upper level of the Great Hall (level 6) has much less floor space than level 5 given that it is mostly open to level 5 below. It is ringed with retail shops and restaurants. At its north end is a pedestrian bridge to and from the “A” concourse and its separate security screening area.

Given this design, every arriving and departing passenger at the Airport (i.e., all passengers except those only connecting through Denver), and nearly every other person having business at the airport (including employees, delivery persons, meeters-and-greeters, etc.), must pass through some portion of the Great Hall. In 2016, the Airport served 58.3 million passengers, making it the sixth busiest airport in the United States and the eighteenth busiest in the world. Approximately 36,000 people also work at the airport.

The protesters who arrived on the evening of January 28 largely congregated in the middle third of the Great Hall (the domestic-arrivals meeter-and-greeter area). The protesters engaged in singing, chanting, praying, and holding up signs. At least one of them had a megaphone.

The size of the protest at its height is unclear. The witnesses at the evidentiary hearing gave varying estimates ranging from as low as 150 to as high as 1,000. Most estimates, however, centered in the range of about 200. Lopez, who believed that the protest eventually comprised about 300 individuals, did not believe that his fifty officers throughout the Airport were enough to ensure safety and security for that size of protest, even if he could pull all of his officers away from their normal duties.

Most of the details of the January 28 protest are not relevant for present purposes. Suffice it to say that Lopez eventually approached those who appeared to be the protest organizers and warned them multiple times that they could be arrested if they continued to protest without a permit. Airport administration later agreed to allow the protest to continue on “the plaza,” an area just outside the Jeppesen Terminal to its south, between the Terminal itself and the Westin Hotel. Protesters then moved to that location, and the protest dispersed later in the evening. No one was arrested and no illegal activity stemming from the protest (e.g., property damage) was reported, nor was there any report of disruption to travel operations or any impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal.

D. The January 29 Protest at the Denver Airport

Plaintiffs disagree strongly with the Executive Order and likewise wished to protest it, but, due to their schedules, were unable to participate in the January 28 protest. They decided instead to go to the Airport on the following day, Sunday, January 29. They came that afternoon and stationed themselves at a physical barrier just outside the international arrival doors at the north end of the Great Hall, level 5. They each held up a sign of roughly poster board size expressing a message of opposition to the Executive Order and solidarity with those affected by it. (See Exs. 2, 4, M.)

Plaintiffs were soon approached by Defendant Quiñones, who warned them that they could be arrested for demonstrating without a permit. Plaintiffs felt threatened, as well as disheartened that they could not freely exercise their First Amendment rights then and there. Plaintiffs felt it was important to be demonstrating both at that particular time, given the broad news coverage of the effects of the Executive Order, and at that particular place (the international arrivals area), given a desire to express solidarity with those arriving directly from international destinations—whom Plaintiffs apparently assumed would be most likely to be affected by the Executive Order in some way.

Plaintiffs left the Airport later that day without being arrested, and without incident. They have never returned to continue their protest, nor have they applied for a permit to do so.

E. Permits Since Issued

The airport has since issued permits to demonstrators opposed to the Executive Order. At least one of these permits includes permission for four people to demonstrate in the international arrivals area, where Plaintiffs demonstrated on January 29.

II. REQUESTED INJUNCTION

Plaintiffs have never proposed specific injunction language. In their Motion, they asked for “an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.” (ECF No. 2 at 4.) At the Preliminary Injunction Hearing, Plaintiffs’ counsel asked the Court to enjoin Defendants (1) “from arresting people for engaging in behavior that the plaintiffs or people similarly situated were engaging in,” (2) from enforcing Regulation 50.09 (which forbids non- labor demonstrators from holding up signs within the Jeppesen Terminal), and (3) from administering Regulation 50 without an “exigent circumstances exception.” Counsel also argued that requiring a permit application seven days ahead of time is unconstitutionally long in any circumstance, exigent or not.

III. LEGAL STANDARD

A. The Various Standards

In a sense, there are at least three preliminary injunction standards. The first, typically-quoted standard requires: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and (4) that the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).

If, however, the injunction will (1) alter the status quo, (2) mandate action by the defendant, or (3) afford the movant all the relief that it could recover at the conclusion of a full trial on the merits, a second standard comes into play, one in which the movant must meet a heightened burden. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc). Specifically, the proposed injunction “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” and “a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Id.

On the other hand, the Tenth Circuit also approves of a

modified . . . preliminary injunction test when the moving party demonstrates that the [irreparable harm], [balance of harms], and [public interest] factors tip strongly in its favor. In such situations, the moving party may meet the requirement for showing [likelihood of] success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.

Verlo v. Martinez, 820 F.3d 1113, 1128 n.5 (10th Cir. 2016). This standard, in other words, permits a weaker showing on likelihood of success when the party’s showing on the other factors is strong. It is not clear how this standard would apply if the second standard also applies.

In any event, “a preliminary injunction is an extraordinary remedy,” and therefore “the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

B. Does Any Modified Standard Apply?

The status quo for preliminary injunction purposes is “the last peaceable uncontested status existing between the parties before the dispute developed.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation marks omitted). By asking that portions of Regulation 50 be invalidated, Plaintiffs are seeking to change the status quo. Therefore they must make a stronger-than-usual showing on likelihood of success and the balance of harms.

IV. ANALYSIS

A. Irreparable Harm as it Relates to Standing

Under the circumstances, the Court finds it appropriate to begin by discussing the irreparable harm element of the preliminary injunction test as it relates Plaintiffs’ standing to seek an injunction.

Testimony at the Preliminary Injunction Hearing revealed that certain groups wishing to protest the Executive Order have since applied for and obtained permits. Thus, Plaintiffs could get a permit to demonstrate at the airport on seven days’ advance notice—although Regulation 50.09 would still prohibit them from demonstrating by wearing or holding up signs. In addition, as discussed in more detail below (Part IV.B.3.c), Plaintiffs could potentially get a permit to hold a protest parade on public streets in the City and County of Denver with as little as 24 hours’ notice. And as far as the Court is aware, the two Plaintiffs may be able to stand on any public street corner and hold up signs without any prior notice or permit requirement. Thus, Plaintiffs’ alleged irreparable harm must be one or both of the following: (1) the prospect of not being able to demonstrate specifically at the airport on less than seven days’ notice, or (2) the inability to picket in opposition to the government action they oppose—that is, the inability to hold up “signs, posters or similar devices” while engaging in expressive activity at the airport. The Court finds that the second of these options is a fairly traditional allegation of First Amendment injury—even if they do apply for and obtain a permit, by the express terms of Regulation 50.09 Plaintiffs will not be allowed to carry or hold up signs, posters, or the like. The first option, however, requires more extensive discussion and analysis.

The rapidly developing situation that prompted Plaintiffs to go to the Airport on January 29 has since somewhat subsided. The Executive Order remains a newsworthy topic, but a nationwide injunction now prevents its enforcement, see Washington, ___ F.3d at ___, 2017 WL 526497, at *9, and—to the Court’s knowledge—none of the most urgent effects that led to airport-based protests, such as individuals being detained upon arrival, have since repeated themselves. Nonetheless, the circumstances that prompted this lawsuit reveal a number of unassailable truths about “freedom of speech . . . [and] the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I.

One indisputable truth is that the location of expressive activity can have singular First Amendment significance, or as the Tenth Circuit has pithily put it: “Location, location, location. It is cherished by property owners and political demonstrators alike.” Pahls v. Thomas, 718 F.3d 1210, 1216 (10th Cir. 2013). The ability to convey a message to a particular person is crucial, and that ability often turns entirely on location.

Thus, location has specifically been at issue in a number of First Amendment decisions. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (abortion protesters’ ability to approach abortion clinic patrons within a certain distance); Pahls, 718 F.3d at 1216–17 (protesters’ ability to be in a location where the President could see them as his motorcade drove past); Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1218–19 (10th Cir. 2007) (peace activists’ ability to be near a hotel and conference center where a NATO conference was taking place); Tucker v. City of Fairfield, 398 F.3d 457, 460 (6th Cir. 2005) (labor protesters’ ability to demonstrate outside a car dealership); Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d 205, 207–08 (D. Conn. 2011) (animal rights protesters’ ability to protest near a circus), aff’d sub nom. Zalaski v. City of Bridgeport Police Dep’t, 475 F. App’x 805 (2d Cir. 2012).

Another paramount truth is that the timing of expressive activity can also have irreplaceable First Amendment value and significance: “simple delay may permanently vitiate the expressive content of a demonstration.” NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984); see also American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”); Church of Am. Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (“given that . . . political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“The five-day notice requirement restricts a substantial amount of speech that does not interfere with the city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing inconvenience to the public.”).

This case provides an excellent example of this phenomena given that —whether intentionally or not— the President’s announcement of his Supreme Court nomination on January 31 (four days after signing the Executive Order) permitted the President to shift the media’s attention to a different topic of national significance. Thus, the inability of demonstrators to legally “strike while the iron’s hot” mattered greatly in this instance. Cf. City of Gary, 334 F.3d at 682 (in the context of a 45-day application period for a parade, noting that “[a] group that had wanted to hold a rally to protest the U.S. invasion of Iraq and had applied for a permit from the City of Gary on the first day of the war would have found that the war had ended before the demonstration was authorized”).

These principles are not absolute, however, nor self-applying. The Court must analyze them in the specific context of the Airport. But for present purposes, the Court notes that the Plaintiffs’ alleged harm of being unable to protest at a specific location on short notice states a cognizable First Amendment claim. In addition, by its very nature, this is the sort of claim that is “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911). Here, “the challenged action”—enforcement of the seven-day permit requirement during an event of rapidly developing significance —“was in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Further, “there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. More specifically, the Court credits Plaintiffs’ testimony that they intend to return to the Airport for future protests, and, given continuing comments by the Trump Administration that new immigration and travel- related executive orders are forthcoming, the Court agrees with Plaintiffs that it is reasonably likely a similar situation will recur —i.e., government action rapidly creating consequences relevant specifically to the Airport.

Thus, although the prospect of being unable to demonstrate at the Airport on short notice is not, literally speaking, an “irreparable harm” (because the need for such demonstration may never arise again), it is nonetheless a sufficient harm for purposes of standing and seeking a preliminary injunction.

The Court now turns to the heart of this case—whether Plaintiffs are likely to succeed on the merits of their claims. Following that, the Court will reprise the irreparable harm analysis in the specific context of the likelihood-of-success findings.

B. Likelihood of Success on the Merits

Evaluating likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that Regulation 50, or any portion of it, violates their First Amendment rights. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling ?state interest? ?

4. If the location is a nonpublic forum, is the government’s speech restriction ? ?reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985).

The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Expressive Conduct?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest that the sorts of activities Plaintiffs attempted to engage in at the Airport (including holding up signs) are expressive endeavors protected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on this element of the Cornelius analysis.

2. Is the Jeppesen Terminal a Public Forum (Traditional or Designated)?

The Court must next decide whether the Jeppesen Terminal is a public forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum[,] speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

a. Is the Jeppesen Terminal a Traditional Public Forum??

Plaintiffs claim that “[t]he Supreme Court has not definitively decided whether airport terminals . . . are public forums.” (ECF No. 2 at 7.) This is either an intentional misstatement or a difficult-to-understand misreading of the most relevant case (which Plaintiffs repeatedly cite), International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (“Lee”).

The plaintiffs in Lee were disseminating religious literature and soliciting funds at the airports controlled by the Port Authority of New York and New Jersey (JFK, LaGuardia, and Newark). Id. at 674–75. By regulation, however, the Port Authority prohibited “continuous or repetitive” person-to-person solicitation and distribution of literature. Id. at 675–76. The Second Circuit held that the airports were not public fora and that the regulation was reasonable as to solicitation but not as to distribution. Id. at 677. The dispute then went to the Supreme Court, which granted certiorari specifically “to resolve whether airport terminals are public fora,” among other questions. Id.

The Court answered the public forum question in the negative. Relying on the historical use of airport terminals generally, the Court found that “the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.” Id. at 680. “Nor can we say,” the Court continued, “that these particular terminals, or airport terminals generally, have been intentionally opened by their operators to such activity; the frequent and continuing litigation evidencing the operators’ objections belies any such claim.” Id. at 680–81. Then, invoking the reasonableness test that applies to government regulation of nonpublic fora, the Court affirmed the Second Circuit’s holding that the solicitation ban was reasonable. Id. at 683–85.

Five justices (Rehnquist, White, O’Connor, Scalia, and Thomas) joined all of the major rulings regarding the solicitation ban, including the nonpublic forum status of airport terminals and the reasonableness of the ban. The outcome regarding the distribution ban, however, commanded no majority opinion. Justice O’Connor, applying the reasonableness standard for nonpublic fora, agreed with the Second Circuit that the distribution ban was not reasonable. Id. at 690–93 (opn. of O’Connor, J.). Justice Kennedy, joined in relevant part by Justices Blackmun, Stevens, and Souter, agreed that the Second Circuit’s judgment regarding the distribution ban should be affirmed, but on different grounds, namely, under a strict scrutiny test (because these justices believed that the airport terminals should be deemed a public forum). Id. at 708–10 (opn. of Kennedy, J.). The result was that the Second Circuit’s invalidation of the distribution ban was affirmed without any opinion commanding a majority view.

Regardless of the outcome with respect to the distribution ban, it is beyond debate that five Supreme Court justices in Lee agreed that airport terminals are not public fora. Id. at 680–81. The Tenth Circuit has acknowledged this holding. Mocek v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015) (“As an initial matter, an airport is a nonpublic forum, where restrictions on expressive activity need only ‘satisfy a requirement of reasonableness.’” (quoting Lee, 505 U.S. at 683)). Notably, Plaintiffs have cited no case in which any court anywhere has deemed an airport to be a public forum.

b. Is the Jeppesen Terminal a Designated Public Forum??

Even though the Jeppesen Terminal is not a traditional public forum, Denver could still designate it as a public forum if Denver “intentionally [opens the Jeppesen Terminal] for public discourse.” Cornelius, 473 U.S. at 802. Denver denies that it has done so, and Plaintiffs’ arguments to the contrary lack merit.

i. Terminal Visitors’ Incidental Expressive Activities

Plaintiffs argue that visitors to the Jeppesen Terminal “engage in First Amendment activity; they wear buttons, shirts, and hats that convey distinct messages to other visitors. They engage in one-on-one conversations.” (ECF No. 21 at 3.) Thus, Plaintiffs say, Denver has designated a public forum within the Jeppesen Terminal.

The Tenth Circuit has already foreclosed this argument. Addressing the public forum status of the Denver Performing Arts Complex, the Court stated the following: “Even if Denver allowed patrons to wear political buttons or shirts with slogans, this would not be sufficient to establish a designated public forum. The First Amendment does not require the government to impose a ‘zone of silence’ on its property to maintain its character as a nonpublic forum.” Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1288 (10th Cir. 1999).

Indeed, even if it wanted to, Denver almost certainly could not impose such a “zone of silence,” as illustrated by Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987). There, the Los Angeles airport authority adopted a resolution announcing that “the Central Terminal Area at Los Angeles International Airport [LAX] is not open for First Amendment activities.” Id. at 570–71 (internal quotation marks omitted). The Supreme Court found that this provision did not “merely reach the activity of [the religious proselytizers who challenged it],” but also prohibited

even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some “First Amendment activit[y].” We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.

Id. at 574–75. Thus, the evidence at the Preliminary Injunction Hearing established beyond any possible dispute that Denver has shown no intent to designate the Airport as a public forum by allowing speech at that location which it may not disallow in the first instance.

ii. The Effect of Regulation 50 Itself?

Plaintiffs further argue, “Regulation 50 states that free speech activity is proper in the Jeppesen Terminal (pursuant to a restriction). Denver has [thus] designated the Jeppesen Terminal a public forum for leafleting, conducting surveys, displaying signs, gathering signatures, soliciting funds, and other speech related activity for religious, charitable, or political purposes.” (ECF No. 21 at 3–4.) Although clever, this argument cannot be correct. 2

First, the Airport knows from the Supreme Court’s Jews for Jesus decision, just discussed, that it cannot prohibit all behavior that can be characterized as First Amendment-protected expressive activity.

Second, the Airport also knows from the Lee decision that it likely cannot completely ban some forms of intentional First Amendment communication (such as leafleting) given that the Jeppesen T erminal, like the Port Authority terminals at issue in Lee, is a large multipurpose facility that can reasonably accommodate some amount of intentional First Amendment activity. So, again, the Airport’s choice to regulate what it could not prohibit in the first place is not evidence of intent to designate a public forum. See Stanton v. Fort Wayne-Allen Cnty. Airport Auth., 834 F. Supp. 2d 865, 872 (N.D. Ind. 2011) (“[t]he designation of certain free speech zones, along with the permit requirement and limitation of expression to certain times, manners, and places as set forth in the permit, are marks of the Airport Authority’s attempt to restrict public discourse, and are inconsistent with an intent to designate a public forum” (emphasis in original)).

Third, Plaintiffs’ position, if accepted, would likely turn out to chill expressive speech in the long run. If a government will be deemed to have designated a public forum every time it accommodates citizens’ natural desire to engage in expressive activity in a nonpublic forum, governments will likely cut back on such accommodations as far as they are constitutionally allowed. Cf. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (government may un-designate a designated public forum).

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2 Plaintiffs have unsurprisingly cited no decision from any court adopting their reasoning.
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iii. “Welcome Home” Messages?

Plaintiffs finally argue that “[s]ome individuals (who, importantly, are not airlines passengers) hold signs welcoming home loved ones or those returning from overseas deployment.” (ECF No. 21 at 3.) The Court will address signs welcoming home veterans and active-duty military members in Part IV.B.3.f, below, and for the reasons stated there finds that this practice, to the extent it exists, does not show intent to designate a public forum. As for welcoming home loved ones, the Court sees no greater religious, charitable, political, or labor-related significance in a typical welcome home sign than standing in the meeter-and-greeter area with a pleasant smile.

In any event, to the extent a welcome home sign has greater significance, “[t]he government does not create a public forum by inaction.” Cornelius, 473 U.S. at 802. Thus, simple failure to enforce Regulation 50 against such signholders is not itself sufficient to infer that the Airport intended to designate a public forum. And finally, even if the Court were to find such an intent, the Court would still be required to consider whether the Airport only intended to designate a public forum specifically for, e.g., those wishing to convey welcome home messages: “A public forum may be created for a limited purpose such as use by certain groups, or for the discussion of certain subjects.” Perry, 460 U.S. at 45 n.7 (1983) (citations omitted). Plaintiffs have nowhere addressed this.

For all these reasons, Plaintiffs have failed to demonstrate that the Jeppesen Terminal is a designated public forum. 3

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3 Plaintiffs also attack Regulation 50 as a “prior restraint.” (ECF No. 2 at 6–7.) “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984)) (emphasis in original). Whether or not that definition could fit Regulation 50, it adds nothing to this case because the Supreme Court’s forum analysis provides the governing principles.
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3. Given that the Jeppesen Terminal Is Not a Public Forum, Is Regulation 50 Reasonable in Light of the Purposes Served by the Airport, and Is It Viewpoint-Neutral?

a. Reasonableness of the Need for a Permit Submitted in Advance, Generally

Reasonableness is a fact-intensive inquiry into the “particular nature of the public expression” at issue and “the extent to which it interferes with the designated purposes” of the nonpublic forum. Hawkins, 170 F.3d at 1290. Justice O’Connor’s concurring opinion in Lee is significant here, both because of its reasoning and because it has reached the somewhat paradoxical status of a “controlling concurrence.” See id. at 1289 (“In actuality, [Justice O’Connor’s reasonableness analysis in Lee] constitutes only Justice O’Connor’s view, who provided the swing vote in the highly-fractured Lee decision, but as the narrowest majority holding, we are bound by it.”).

In Lee, Justice O’Connor noted the Port Authority’s airports were not single-purpose facilities (unlike many other locations where the Supreme Court had previously examined speech restrictions). 505 U.S. at 688. Rather, the airports were “huge complex[es] open to travelers and nontravelers alike,” id. at 688, and had essentially become “shopping mall[s] as well as . . . airport[s],” id. at 689. The question, then, was whether Port Authority’s restrictions were “reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id.

Justice O’Connor’s description of the Port Authority Airports aptly describes the Jeppesen Terminal, to an extent. The Great Hall is lined with restaurants and retail establishments, and in that sense is reminiscent of a shopping mall. On the other hand, most of the floor space on level 6 is simply the floor space needed to get from location to location (the equivalent of wide hallways), and most of the floor space on level 5 is dedicated to security screening. The only large area that is usually free of significant obstructions is the central meeter-and-greeter area—and even that area has at times been taken up by art installations or other features. 4

Moreover, despite certain characteristics of the Airport that may resemble a shopping mall, the Airport’s undisputed primary purpose is to facilitate safe and efficient air travel. The need for safety hopefully needs no discussion —for decades, airports and airplanes have been the specific target of terrorists. As for efficiency, the significance of the Great Hall within the Jeppesen Terminal is particularly evident given that it is the node through which every arriving and departing passenger must pass. As noted, the Airport served 58.3 million passengers last year. Even assuming that just 20 million (about a third) were arrivals and departures (the remainder being those who connect through without reaching the Jeppesen Terminal), this still comes to more than 55,000 passengers moving through the Great Hall per day, or about 2,300 per hour. If the Airport could somehow maintain precisely that average over all days and hours of its operation —which of course never happens— it would still be the equivalent of perpetually filling and emptying a large concert hall every hour.

In this light, the Airport’s general purposes for requiring demonstrators to apply for a permit in advance are difficult to question. As stated by the various Airport administrators who testified at the Preliminary Injunction Hearing (Ken Greene, chief operations officer; Patrick Heck, chief commercial officer; and Dave Dalton, assistant director for terminal operations), it is important for the Airport to have advance notice regarding the presence of individuals coming for reasons other than normal airport- related activities, and particularly those who come to the airport intending to attract the attention of passengers and others. The Airport needs an opportunity to determine the appropriate location for a group of the requested size in light of the day(s) and time(s) requested. The permitting requirement also gives the Airport the opportunity to point out Regulation 50’s code of conduct (Regulation 50.08), so that demonstrators know what activities are and are not permissible.

In addition, the Airport fairly desires an opportunity to understand the nature of the expressive activity, which can inform whether additional security is needed. As Lopez’s testimony illustrates, it is not a simple matter to bring additional police officers to the Airport on a moment’s notice. Lopez further pointed out the advantage of understanding the subject matter of the dispute so that he can anticipate whether counter-protesters might arrive and potentially create at least a difficult, if not dangerous, situation.

Importantly, Denver does not need to prove that any particular past event has raised serious congestion or safety concerns: “Although Denver admits that plaintiffs did not cause any congestion problems or major disruption on the particular occasion that they demonstrated . . . , that is not dispositive. ‘[T]he Government need not wait until havoc is wreaked to restrict access to a nonpublic forum.’” Hawkins, 170 F.3d at 1290 (quoting Cornelius, 473 U.S. at 810). Thus, the Airport may reasonably require a permit applied for in advance. The Court does not understand Plaintiffs to be arguing to the contrary, i.e., that the Airport is never justified in requiring an advance permit under any circumstances.

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4 Plaintiffs’ Exhibit 15, for example, is a photograph of the meeter-and-greeter area in 2008, and shows that a fountain occupied a significant portion of floor space at the time.
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?b. Reasonableness of the Seven-Day Requirement, Specifically

Plaintiffs do attack Regulation 50.03’s requirement that permit applications be submitted seven days in advance of the desired activity, apparently arguing that this is unconstitutionally unreasonable in all circumstances. Given both Plaintiffs’ testimony at the Preliminary Injunction Hearing, it is not clear that they would be satisfied by a shorter advance-notice period, nor that it would redress their claimed injury —the inability to protest essentially at a moment’s notice on a topical event. But, to the extent Plaintiffs are challenging the seven-day requirement through the overbreadth doctrine (see Part IV.B.4, below), the Court finds that they have not met their higher burden (or even the normal preliminary injunction burden) to show that they are likely to succeed on proving the seven-day requirement unreasonable in all circumstances.

The Airport’s witnesses were not aware of any other airport with a seven-day requirement. The Indiana airport at issue in the Stanton case —which Defendants have relied upon heavily— had a two-day notice requirement, and also a provision by which the airport could accept an application on even shorter notice. 834 F. Supp. 2d at 870. On the other hand, that Airport handled about 40,000 departing and arriving passengers per month, id. at 868, whereas the Denver Airport handles far more than that per day.

The Court’s own research has revealed that airports ahead of the Denver Airport in 2016 passenger statistics have varied requirements:

• O’Hare International Airport (Chicago) — six business days, see Chicago Department of Aviation Amended Rules and Regulations Governing First Amendment Activities at the City of Chicago Airports § 3(A) (Sept. 18, 2015), available at http://www.flychicago.com/SiteCollectionDocuments/ OHare/AboutUs/cdaamendedRulesandRegs.pdf (last accessed Feb. 16, 2017);

• Dallas-Fort Worth International Airport — three business days, see Code of Rules and Regulations of the Dallas-Fort Worth International Airport Board, ch. 3, § 4, art. VI(A) (2006), available at https://www.dfwairport.com/cs/groups/public/documents/webasset/p1_008800.pdf (last accessed Feb. 16, 2017); ?

• John F. Kennedy International Airport (New York City) — twenty-four hours, see Port Authority of New York and New Jersey Airport Rules and Regulations § XV(B)(2)(a) (Aug. 4, 2009), available at http://www.panynj.gov/airports/pdf/Rules_Regs_Revision_8_04_09.pdf (last accessed Feb. 16, 2017). ??

Obviously there is no clear trend. Depending on how these airports define “business day,” some of these time periods may actually be longer than the Denver Airport’s seven-day requirement. ?

In any event, Plaintiffs have never explained how the Airport, in its particular circumstances, cannot reasonably request seven days’ advance notice as a general rule. Indeed, Plaintiffs could not cite to this Court any case holding that any advance notice requirement applicable to a nonpublic forum was unconstitutional in all circumstances. Accordingly, Plaintiffs have not made a strong showing of likelihood of success on this particular theory of relief.

c. Reasonableness of the Regulation 50.03’s Lack of a Formal Process for Handling Permit Application More Quickly in Exigent Circumstances

Plaintiffs would prefer that they be allowed to demonstrate at the Airport without any advance notice in “exigent circumstances.” Given the serious and substantial purposes served by an advance notice requirement, the Court cannot say that Plaintiffs are likely to succeed on this score. Plaintiffs have given the Court no reason to hold that the Airport has a constitutional duty, even in exigent circumstances, to accommodate demonstrators as they show up, without any advance warning whatsoever.

Nonetheless, the Airport’s complete lack of any formal mechanism for at least expediting the permit application process in unusual circumstances raises a substantial and serious question for this Court. As noted in Part IV.A, above, timing and location are cardinal First Amendment considerations, and a number of cases regarding public fora (streets and parks) have held or strongly suggested that an advance notice requirement is unconstitutional if it does not account for the possibility of spontaneous or short-notice demonstrations regarding suddenly relevant issues.

Indeed, as the undersigned pointed out to Defendants’ counsel at the Preliminary Injunction Hearing, Denver itself is willing to accept an application for a street parade on twenty-four hours’ notice (as opposed to its standard requirement of thirty days) “if the proposed parade is for the purpose of spontaneous communication of topical ideas that could not have been foreseen in advance of [the] required application period or when circumstances beyond the control of the applicant prevented timely filing of the application.” Denver Mun. Code § 54-361(d). But again, this governs a public forum (city streets), where time, place, and manner restrictions such as this must satisfy a narrow tailoring analysis and leave open ample alternative channels for communication. See Perry, 460 U.S. at 45. As the above discussion makes clear, under controlling authority the Airport need not satisfy the same legal standards.

The parties have not cited, nor has the Court located, any case specifically discussing the need for a nonpublic forum to accommodate short-notice demonstrations. But the Court likewise has not found any case expressly precluding that consideration when evaluating reasonableness in the context of a nonpublic forum. It is perhaps unsurprising that the specific question has never come up in a nonpublic forum until now. The Court believes it to be an accurate observation that this country has never before experienced a situation in which (a) the motivation to protest developed so rapidly and (b) the most obviously relevant protest locations was a place the Supreme Court had already declared to be a nonpublic forum—the airport terminal.

When evaluating the reasonableness of a First Amendment restriction in a nonpublic forum, the Court concludes that it may appropriately consider the ability to shorten an advance notice requirement in a place like the Airport, given how unique airports are within the category of nonpublic fora. As Justice O’Connor noted in Lee, most of the Supreme Court’s major nonpublic forum cases aside from airport cases have involved

discrete, single-purpose facilities. See, e.g., [United States v.] Kokinda, [497 U.S. 720 (1990)] (dedicated sidewalk between parking lot and post office); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985) (literature for charity drive); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (utility poles); Perry, supra (interschool mail system); Postal Service v. Council of Greenburgh Civic Assns., [453 U.S. 114 (1981)] (household mail boxes); Adderley v. Florida, 385 U.S. 39 (1966) (curtilage of jailhouse).

505 U.S. at 688 (parallel citations omitted). As Justice O’Connor observed, however, many airports have become large, multipurpose facilities, see id. at 688–89, and that describes the Denver Airport well. To be sure, the reason for expanding beyond the bare minimum of infrastructure needed to handle travelers and airplanes is to promote air travel—to make the airport a more convenient and welcoming location specifically (although not exclusively) for travelers—but the reasonableness of First Amendment restrictions must nonetheless be judged according to the “multipurpose environment that [airport authorities] ha[ve] deliberately created.” Id. at 689.

Moreover, modern airports are almost always owned and operated by a political body, as well as secured by government employees. Thus, short-notice demonstrations reasonably relevant to an airport are also reasonably likely to be demonstrations about political or otherwise governmental topics, “an area in which the importance of First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (internal quotation marks omitted).

Given all this, and in light of the First Amendment interests in location and timing that this very case has made salient, the Court finds it unreasonable for the Airport to have no formal process by which demonstrators can obtain an expedited permit when -to borrow from the Denver parade ordinance— they seek to communicate topical ideas reasonably relevant to the Airport, the immediate importance of which could not have been foreseen in advance of the usual seven-day period, or when circumstances beyond the control of the applicant prevented timely filing of the application. The Court further finds in the particular circumstances of the Airport that reasonableness requires a process by which an applicant who faces such circumstances can request a permit on twenty-four hours’ notice. If this is all the notice Denver needs to prepare for a street parade, the Court can see no reason why more notice is needed (in exigent circumstances) for a substantially more confined environment like the Airport. 5

Accordingly, the Court finds that Plaintiffs are strongly likely to succeed in their challenge to Regulation 50.03 to this limited extent.

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5 At the Preliminary Injunction Hearing, Defendants’ counsel argued that preparing for a street parade is actually easier than preparing for demonstrations at the airport. The Court cannot fathom how this could possibly be the case, at least when comparing a typical street parade request to the typical Airport demonstration request. Indeed, the normal street parade request window is thirty days, suggesting just the opposite. Denver Mun. Code § 54-361(d). The challenges may be different, but the Court cannot accept—on this record, at least—that Airport demonstrations on average require more preparation time than do public parades or marches.
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d. Reasonableness of the Airport’s Power to Control the Location of Permitted Expressive Activity

At the Preliminary Injunction Hearing, it became clear that Plaintiffs not only wish for a more expansive right to protest in the Jeppesen T erminal, but they also argue for the right to select precisely where in the Terminal they should be allowed to stand. The Court recognizes that, from Plaintiffs’ perspective, their message is diluted if they cannot demonstrate in the international arrivals area, and this is a legitimate concern for all the reasons discussed previously about the power of location when conveying a message. The Court must also account, however, for Airport administrators’ superior knowledge about airport operations, foot traffic patterns, concerns particular to the specific day of the protest, and so forth.

?Regulation 50.04-1 requires permit applicants to specify “each location at which the [expressive] activity is proposed to be conducted,” but nowhere in Regulation 50 is there any limitation on the Airport’s discretion whether to approve the location request. Rather, the only provision addressing this topic is Regulation 50.04-6, which applies to a demonstration already underway: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.”

There is no evidence that Airport administrators are using their discretion when approving a demonstration’s location to suppress or dilute a particular message, but there is also no logical reason to leave Airport administrators’ discretion essentially unfettered at the permitting stage while restricting it once the demonstration is underway. The Court finds Plaintiffs are likely to succeed at least in proving that Regulation 50.04-1 is unreasonable to the extent the Airport’s discretion is not restrained to the same degree as in Regulation 50.04-6. Defendants will therefore be enjoined to follow the same restraints in both settings.

e. Reasonableness of Regulation 50.09’s Prohibition of Signage Within the Jeppesen Terminal, and Regulation 50.08-12’s Limitation of All Signs to One Square Foot

Regulation 50.09 establishes that “picketing” (defined to include “displaying one or more signs, posters or similar devices,” Regulation 50.02-8) is totally prohibited in the Jeppesen Terminal unless as part of a labor protest. And, under Regulation 50.08-12, any permissible sign may be no larger than “one foot by one foot in size.”

?Any argument that the picketing ban is reasonable in the context of the Airport is foreclosed by Justice O’Connor’s analysis of the leafleting band at issue in Lee. See 505 U.S. at 690–93. Leafleting usually involves an individual moving around, at least within a small area, and actively offering literature to passersby. Signholding is usually less obtrusive, given that the signholder often stays within an even smaller area and conveys his or her message passively to those who walk by and notice the sign. The Court simply cannot discern what legitimate or reasonable Airport purpose is served by a complete ban on “picketing” or signholding among permitted demonstrators in the Jeppesen Terminal.

The Court also finds the one-foot-by-one-foot signage restriction unreasonable. The Airport has a legitimate interest in regulating the size of signs, as well as other aspects of their display (such as whether they will be held in the air, as in traditional picketing), but a one-foot-by-one-foot restriction is barely distinguishable, both legally and as a factual matter, from a complete ban. The point of a sign is to make a message readable from a distance. Few messages of substance are readable from any kind of distance if they must be condensed into one foot square. Reasonableness instead requires the Airport to consider the size of the signs that a permit applicant wishes to display as compared to the needs and limitations of the location where the applicant will demonstrate. Any restriction by the Airport which limits the size of a permit applicant’s signage beyond that which may be reasonably required to prevent the restriction or impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal will be preliminarily enjoined.

f. Viewpoint Neutrality

?A nonpublic forum is not required to be content-neutral, but it is required to be viewpoint-neutral with respect to the First Amendment activity it permits. Hawkins, 170 F.3d at 1288. Regulation 50, on its face, is viewpoint neutral, and Plaintiffs do not argue otherwise. Rather, they say that “Regulation 50 is being enforced as a clearly view-point-based restriction.” (ECF No. 2 at 14 (emphasis added).) This appears to be an as-applied challenge:

Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest.

(Id.) Denver responds:

The permit requirement furthers the nonpublic forum purpose by mitigating disruption at the airport by individuals who choose to be at the airport for non-travel related activities. In Stanton, the [Northern District of Indiana] rejected this exact argument challenging a nearly identical permitting rule of the Fort Wayne-Allen County Airport on an as applied basis by distinguishing between incidental expressive activities by members of the traveling public versus those arriving at the airport solely for purposes of engaging in expressive speech. Any messages a traveler or individual picking up a family member conveys by wearing T-shirts or hats are “incidental to the use of the Airport’s facilities” by persons whose “primary purpose for being present at the Airport is a purpose other than expressing free speech rights,” which is different in kind than individuals arriving at an airport whose primary purpose is expressive speech. Id. at 880–882.

(ECF No. 20 at 11 (emphasis added).)?

This argument obviously relies on a particular interpretation of Regulation 50 (given that the Regulation itself makes no explicit distinction between those who arrive at the airport for travel-related purposes and those who do not). Nonetheless, this is how Airport administrators interpret Regulation 50, as they made clear at the Preliminary Injunction Hearing. They also made clear that they have never sought to enforce Regulation 50 against someone wearing a political shirt, for example, while on airport-related business. Plaintiffs’ own arguments support the sincerity of the Airport administrators’ testimony. By Plaintiffs’ own admission, they are unaware of anyone going about his or her typical airport-related business who has been arrested or even threatened with arrest for wearing a political shirt, discussing politics, etc.

At the Preliminary Injunction Hearing, Plaintiffs attempted to present an as- applied viewpoint discrimination case by showing that the Airport regularly allows individuals to hold rallies, display signs, and so forth, for returning servicemembers and veterans, yet without requiring those individuals to obtain a permit under Regulation 50. The Court agrees that pro-military and pro-veteran messages are political statements, at least to the extent being conveyed by someone not at the Airport to welcome home a relative or loved one (and perhaps even by those persons as well). Thus, it would seem that pro-military messages would fall under Regulation 50. However, Plaintiffs have failed at this stage to show that the Airport’s alleged treatment of pro-military and pro-veteran messages amounts to viewpoint discrimination.

At the outset, Plaintiffs fail to note the subjective element of their claim: “viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.” Pahls, 718 F.3d at 1230. In that light, it is tenuous to suggest that allowing (allegedly) unpermitted pro-military or pro-veteran expression at various times in the past but not allowing these recent unpermitted protests against the Executive Order is evidence of viewpoint discrimination. The question of whether our nation should honor servicemembers and the question of how our nation should treat foreign nationals affected by the Executive Order are not really in the same universe of discourse. To bridge the gap, it takes a number of assumptions about where pro-military attitudes tend to fall in the American political spectrum, and what people with those attitudes might also think about the Executive Order. This would be a fairly tall order of proof even outside the preliminary injunction context.

Moreover, Plaintiffs’ evidence of unpermitted pro-military expression is fairly weak. Plaintiffs’ main example is the activities of the Rocky Mountain Honor Flight, an organization that assists World War II veterans to travel to Washington, D.C., and visit the World War II Memorial, and then welcomes them home with a large and boisterous rally held in the meeter-and-greeter portion of the Great Hall. A former servicemember who helped to organize one of these rallies testified that she inquired of a more-senior organizer whether the Airport required any special procedures, and the answer she received was “no.” However, Airport administrators presented unrebutted testimony that Rocky Mountain Honor Flight rallies are planned far in advance and sponsored by the Airport itself, in connection with TSA and certain airlines. The Airport does not need a Regulation 50 permit for its own expressive activities, and a government entity’s expression about a topic is not a matter of First Amendment concern. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”).

Apart from the Rocky Mountain Honor Flight, Plaintiffs’ evidence comprises photos they gleaned from a Getty Images database showing individuals over the last decade or so being greeted at the Airport by persons holding signs. Some of these signs appear to be simple “welcome home” signs directed at specific returning family members. In the obviously servicemember-related photos, American flags are common. The Court finds that these photos, presented out of context, are not sufficient evidence to make a strong showing of likelihood of success regarding viewpoint discrimination, particularly the subjective intent requirement. Thus, the Court finds no reason for an injunction based on alleged viewpoint-discriminatory conduct. 6

————
6 Even if Plaintiffs’ evidence were enough, the Court would find at this stage of this litigation that the only injunctive relief appropriate in light of the balance-of-harms and public interest considerations, below, would be an injunction to enforce Regulation 50 evenhandedly. Such an outcome would not advance Plaintiffs’ interests here.
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4. Is Regulation 50 Overbroad or Vague?

Plaintiffs bring both overbreadth and vagueness challenges to Regulation 50, which, in this case, are really two sides of the same coin. If a speech regulation’s sweep is unclear and may potentially apply to protected conduct, a court may invalidate the regulation as vague; whereas if the regulation actually applies to unprotected as well as protected speech, an individual who violates the regulation through unprotected speech may nonetheless challenge the entire statute as overbroad. See Grayned v. City of Rockford, 408 U.S. 104, 108–09, 114–15 (1972); 1 Smolla & Nimmer on Freedom of Speech ch. 6 (Oct. 2016 update). Here, Plaintiffs argue either that Regulation 50 is overbroad because it forbids (without a permit) protected conduct such as wearing a political hat while walking to one’s flight (ECF No. 2 at 16–18); or it is vague because it is unclear to what it applies precisely, given that Plaintiffs have seen Regulation 50 enforced against themselves but not against those who wear political hats or buttons, who are welcoming home military veterans, etc., all of whom are “seemingly in violation” of the Regulation (id. at 18–20).

The first task, then, is to determine what Regulation 50 actually encompasses. Again, the Regulation states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.”

The portion about leafleting, conducting surveys, displaying signs, gathering signatures, or soliciting funds is not vague. It does not fail to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned, 408 U.S. at 108. Nor is it overbroad given that it is not a complete prohibition of leafleting (as in Lee), but simply a prohibition without a permit.

The arguably difficult portion of Regulation 50 is the “or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes” clause. It is grammatically possible to interpret this passage as extending to any religious, charitable, or political “speech related activity” by anyone at the Airport, including travelers wearing political buttons or sharing their religious beliefs with others.

Denver argues that no person of ordinary intelligence would have such a worry: “a person of ordinary intelligence cannot reasonably claim that they are unable to discern the difference between a traveler walking through the airport with a ‘make America great again’ baseball cap or travelers discussing politics as they walk to their intended destination and a gathering of people who have no purpose for being at the airport other than to march or station themselves in order to communicate their position on a political issue.” (ECF No. 20 at 14.) This argument is slightly inapposite. The question is not whether someone can distinguish between a passenger’s pro-Trump hat and a gathering of anti-Trump protesters. The question is whether Regulation 50 contains such a distinction, and particularly a distinction between the incidental activities of those who come to the airport for airport-related purposes and the intentional activities of those who come to the airport to demonstrate.

However, to the extent Denver means to say that Regulation 50 would not be interpreted by a person of ordinary intelligence to encompass, e.g., a traveler choosing to wear a “Make America Great Again” hat, the Court agrees. Regulation 50 is not, as Plaintiffs suggest, just one paragraph from Regulation 50.03. Regulation 50 comprises sixteen major subdivisions, many of which are themselves subdivided. A person of ordinary intelligence who reads Regulation 50 —all of it— cannot avoid the overwhelming impression that its purpose is to regulate the expressive conduct of those who come to the Airport specifically to engage in expressive conduct. Thus, Regulation 50 is not vague.

As for overbreadth, “[t]he first step in [the] analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). For the reasons already stated, the Court finds that the only reasonable construction is one that does not extend to an airline passenger wearing a political T-shirt, or anything of that character. Cf. Jews for Jesus, 482 U.S. at 575. This is, moreover, the Airport’s own interpretation, the sincerity of which is borne out by Plaintiffs’ own experience. Thus, Regulation 50 is not overbroad. 7

————
7 Even if Regulation 50 were vague or overbroad, the Court would nonetheless find that an injunction against enforcing Regulation 50 as a whole would be against the public interest. The more appropriate remedy would be an injunction to follow precisely the interpretation that the Airport currently follows, but that would be of no benefit to Plaintiffs.
————

?C. Irreparable Harm

Having found that Plaintiffs are strongly likely to succeed in invalidating a narrow subset of Regulation 50, the Court returns to irreparable harm. Given that Plaintiffs First Amendment rights are at stake in those portions of Regulation 50 that the Court finds to be unreasonable, irreparable harm almost inevitably follows: “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted).

?D. Balance of Harms

The injury to a plaintiff deprived of his or her legitimate First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). Thus, the Court finds that the harm to Plaintiffs from the Airport’s continued enforcement of the unreasonable portions of Regulation 50 would be greater than the harm to the Airport in refraining from such enforcement, particularly given that the unreasonable portions are quite limited and most of Regulation 50 will remain unchanged.

?E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. Moreover, the Court is not striking down Regulation 50 or even altering it in any significant respect. Thus, the public’s interest in safe and efficient Airport operations remains unaffected.?

F. Bond

A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held, however, that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted); see also 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2016 update) (citing public rights cases where the bond was excused or significantly reduced). Denver has not argued that Plaintiffs should be required to post a bond, and the Court finds that waiver of the bond is appropriate in any event.

V. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED to the ?limited extent stated in this order and otherwise DENIED; ?

2. The City and County of Denver (including its respective officers, agents, ?servants, employees, attorneys, and other persons who are in active concert or participation with any of them, and further including without limitation Defendants Lopez and Quiñones) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows:

a. Defendants must timely process a permit application under Denver Airport Regulation 50.04-1 that is received less than 7 days but at least 24 hours prior to the commencement of the activity for which the permit is sought, provided that the applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen 7 days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the applicant prevented timely filing of the application; however, circumstances beyond Defendants’ control may excuse strict compliance with this requirement to the extent those circumstances demonstrably interfere with the expedited permitting process; ?

b. So long as a permit applicant seeks to demonstrate in a location where the unticketed public is normally allowed to be, Defendants must make all reasonable efforts to accommodate the applicant’s preferred location, whether inside or outside of the Jeppesen Terminal;

c. Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Regulation 50.02-8) within the Jeppesen Terminal; and

d. Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot.

3. This Preliminary Injunction is effective immediately upon issuance of this Order, and will remain in force for the duration of this action unless otherwise modified by Order of this Court.

Dated this 22nd day of February, 2017, at 8:05 a.m. Mountain Standard Time. BY THE COURT:

__________________________
William J. Martínez?
United States District Judge

Pro-immigrant activists with Occupy Denver file suit against DIA and DPD, challenge airport free speech “permit”


DENVER, COLORADO- Civil liberties champion David Lane has filed a complaint in US district court challenging Denver’s office of the city attorney for instituting a permit process at DIA to prevent public protest. Holding signs has become impermissible at the airport, without the issuance of a permit seven days in advnace, although police are not bothering themselves about signs welcoming homecomers or seeking to connect business visitors with their limo service. That selective enforcement is unconstitutional of course, and the lawfirm powerhouse of Kilmer Lane & Newman is filing suit on behalf of two Occupy Denver plaintiffs. last Sunday, January 29, both were threatened with arrest by DIA police. While two earlier attempts to assemble had capitulated to DPD intimidation, the Occupy Denver activists stood their ground. Why did you file your lawsuit? “We know our rights. We want the POLICE to know our rights.”

1. Full text of complaint:

Case 1:17-cv-00332 Document 1
Filed 02/06/17 USDC Colorado Page 1 of 14

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

COMPLAINT

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, allege as follows:

INTRODUCTION

1. Plaintiffs Eric Verlo and Nazli McDonnell challenge a regulation of alarming breadth that bans all First Amendment expression at Denver International Airport without a permit.

2. Plaintiffs are concerned citizens who believe that President Donald Trump has overstepped his executive authority by signing the January 27, 2017, Executive Order (hereinafter “Muslim Ban”), which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit).

3. Plaintiffs wish to express their disgust with President Trump’s (likely unconstitutional) Muslim Ban. They wish to do so in the same place that hundreds of thousands of Americans across the country have done: standing directly outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within an airport where immigrants to America enter into the main terminal after clearing customs. Plaintiffs, unlike many citizens across this great nation who have exercised their opposition to the Muslim Ban in airports by chanting, singing, dancing, and praying, simply wish to stand in silent protest, holding signs that express their solidarity with immigrants and the Muslim community.

4. Plaintiffs are banned from doing so by DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”).

5. Regulation 50 states: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

6. Plaintiffs ask that this Court enjoin the enforcement of Regulation 50 and prohibit Defendants from arresting them for their First Amendment-protected activity of standing in peaceful protest within Jeppesen Terminal. Regulation 50 is overbroad in violation of the First Amendment and vague in violation of the Fourteenth Amendment’s Due Process Clause.

7. This is a civil rights action for declaratory and injunctive relief as well as fees and costs arising under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. Section 2201 et seq. due to Defendants’ current and imminent violations of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

PARTIES

8. Plaintiff Eric Verlo is a citizen of the United States of America. Mr. Verlo wishes to show his resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

9. Plaintiff Nazli McDonnell is a citizen of the United States of America. Ms. McDonnell wishes to show her resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

10. Defendant City and County of Denver is a municipal corporation and political subdivision of the State of Colorado. Thus, it is an entity subject to the provisions of § 1983.

11. Defendant Antonio Lopez is a Commander with the Denver Police Department. Commander Lopez is responsible for security at Denver International Airport’s Jeppesen Terminal.

12. Defendant Virginia Quinones is a Sergeant with the Denver Police Department. Sergeant Quinones is responsible for security at Denver International Airport’s Jeppesen Terminal.

JURISDICTION AND VENUE

13. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983; the First Amendment to the United States Constitution, incorporated as against States and their municipal divisions through the Fourteenth Amendment to the United States Constitution; and the Due Process Clause of the Fourteenth Amendment.

14. This Court has jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’ claims that “arise[] under the Constitution of the United States.”

FACTS

15. On January 27, 2017, President Donald Trump signed an Executive Order, which permanently banned Syrian refugees from emigrating to the United States, temporarily banned nationals of seven countries (including permanent legal residents and visa-holders), and suspended all applications to the United States refugee program (even as to vetted entrants currently in transit). President Trump’s Executive Order has been subsequently referred to as a “Muslim Ban,” because it both mirrors President Trump’s racist, anti-Islam statements made on December 7, 2015, that he was planning to ban all Muslims from entering the United States until our representatives can “figure out what’s going on” and the ban targets countries whose population is predominantly Muslim and seemingly bears little rational relation to each country’s security threat to the United States.

16. Immediately upon the enactment of President Trump’s Muslim Ban there was an outpouring of outrage from a large proportion of the American population and across the spectrum of political affiliation. This outrage led to resistance in the form of protests.

17. On January 28, 2017, and January 29, 2017, protests erupted in nearly every major city in the United States. The protests organically formed in our nation’s airports. Protesters chose to express their disgust with President Trump’s Muslim Ban in airports (and specifically outside of the secure CBP screening area) because individuals affected by the ban who were in transit to the United States were being held and questioned by CBP agents there. Many of these travelers, including lawful United States residents, were forced to sign documents revoking their lawful status within the United States and deported. Still others were simply deported with no explanation. Others still were held for hours as teams of lawyers rushed to prepare habeas petitions for their release.

18. News reports about the protests make clear that they have been peaceful and non- disruptive despite the gathering of, in some cases, thousands of people.

19. Airport staff have told protesters, and would-be protesters, at numerous airports across the nation, including Kansas City International Airport, that there are no restrictions on their speech and that all protesters who wish to participate in actions against the Muslim Ban are allowed. Protests have continued in other cities to this day.

20. On January 28, 2017, there was one such protest at Denver International Airport, within the Jeppesen Terminal. At approximately 5:00 p.m. hundreds gathered in the Jeppesen Terminal’s atrium, near arrivals, to protest and many others gathered to bear witness.

21. Prior to the protest, leaders had applied for a permit. It was denied. The reason for its denial was that the permit was not requested with seven days advance notice of the protest occurring. Regulation 50 requires seven days advance notice.

22. The January 28, 2017, protest began with speeches, chants, songs, and prayers. It was a peaceful gathering of solidarity for immigrants and Muslims. Every person at the January 28, 2017, protest was contained in an area of the Jeppesen Terminal atrium that is designed as a gathering space for people to sit, relax, and converse. No one was standing in the walkways or passageways of the terminal.

23. Soon after the January 28, 2017, protest began, members of the Denver Police Department arrived on-scene. Commander Antonio Lopez engaged the leader of the protest, Amal Kassir, along with State Representative Joe Salazar and representatives from the ACLU of Colorado, and informed them that the protest was unlawful. Commander Lopez told Ms. Kassir that anything that “could be construed as Free Speech” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit. See Exhibit 1, January 28, 2017 Video.

24. Commander Lopez also stated that all “First Amendment expression” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit on Regulation 50. Commander Lopez handed Regulation 50 to multiple protesters, including Ms. Kassir. See Exhibit 2, January 28, 2017 Video 2.

25. Regulation 50 states (in pertinent part): “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

26. Commander Lopez, along with members of Denver International Security, told Ms. Kassir that every portion of Denver International Airport property, which has an approximately fifty square mile footprint, is off-limits for First Amendment expression. They suggested that Ms. Kassir move her protest to Tower Road, which is approximately six miles from the Jeppesen Terminal and, like most of the land surrounding Denver International Airport, adjacent to open prairie land with no inhabitants.

27. Commander Lopez threatened Ms. Kassir and numerous other demonstrators with arrest if they didn’t immediately cease any “First Amendment expression.” According to Commander Lopez’s directives, the individuals gathered in the Jeppesen Terminal could not stand holding signs, sing, speak to others about matters of public concern, hold the United States Constitution above their shoulders, or stand silently with their arms interlocked.

28. Ultimately, to avoid arrest, Ms. Kassir and the demonstrators moved outside of the Jeppesen Terminal to the large area on its south side, adjacent to the escalators leading to the commuter rail and under the Westin Hotel. The protest continued peacefully for a little while longer, then disbursed without issue.

29. The next day, January 29, 2017, Plaintiffs Eric Verlo and Nazli McDonnell traveled to Denver International Airport’s Jeppesen Terminal to express their opposition to President Trump’s Muslim Ban.

30. Mr. Verlo and Ms. McDonnell brought with them signs expressing support for immigrants and expressing concern that history was repeating itself with disastrous potential consequences.

31. Mr. Verlo and Ms. McDonnell positioned themselves adjacent to the secure CBP screening area within the Jeppesen Terminal at approximately 1:15 p.m.

32. Adjacent the secure CBP screening area at the Jeppesen Terminal is the only place where Mr. Verlo and Ms. McDonnell can reach their intended audience. Mr. Verlo and Ms. McDonnell wish to communicate with those who could be swayed by their message and, particularly, with immigrants. International travelers are often immigrants and/or lawful United States residents, including green card and other visa holders, other than citizens. Mr. Verlo and Ms. McDonnell wish to express their solidarity with immigrants directly to these individuals. Further, United States citizens who arrive from international locations are also individuals with whom Mr. Verlo and Ms. McDonnell wish to communicate. International travelers have experienced other cultures and are likely to be sympathetic to Mr. Verlo and Ms. McDonell’s message.

33. The secure CBP screening area is also the location where the Muslim Ban has been enforced by DHS, both at Denver International Airport and across the nation. Neither Plaintiff attempted to enter any restricted areas of Denver International Airport.

34. While silently displaying their signs, Mr. Verlo and Ms. McDonnell were in the open plaza near the secure CBP screening area within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand. Mr. Verlo and Ms. McDonnell did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

35. Mr. Verlo and Mr. McDonnell also observed another man in the terminal, named Gene Wells, who was expressing views similar to theirs.

36. Mr. Wells was wearing a sign taped to the back of his shirt.

37. Mr. Wells left the Jeppesen Terminal, but subsequently returned to protest. When he did, he was stopped by Denver Police Department officers who told him that he could not walk around the terminal with the slogan he had affixed to his back. Mr. Wells eventually rejoined Mr. Verlo and Mr. McDonnell at the international arrivals doors, but not without trepidation. He feared he might be arrested.

38. While Mr. Verlo and Ms. McDonnell were displaying their signs, Defendant Sergeant Virginia Quinones approached Mr. Verlo and Ms. McDonnell and threatened them with arrest if they did not leave Jeppesen Terminal. See Exhibit 3, January 29, 2017, Video.

39. Sergeant Quinones handed Mr. Verlo and Ms. McDonnell Regulation 50 and cited it as the reason they would be arrested if they did not leave Jeppesen Terminal. Id. Sergeant Quinones told Mr. Verlo and Ms. McDonnell that they would need a permit in order to stand silently, holding signs in opposition of the Muslim Ban and be in compliance with Regulation 50.

40. Had Mr. Verlo and Ms. McDonnell applied for a permit the second President Trump signed the Executive Order implementing the Muslim Ban, they still would have been unable to engage in protest within the Jeppesen Terminal under the terms and conditions of Regulation 50 on January 29, 2017.

41. Mr. Verlo and Ms. McDonnell did not immediately leave the Jeppesen Terminal after being threatened with arrest. However, they were startled by Sergeant Quiones’ threat and feared arrest for the duration of the time they were there.

42. Throughout the time Mr. Verlo and Ms. McDonnell were expressing their views within the Jeppesen Terminal they received numerous shows of support from passersby. Multiple self- proclaimed Muslims expressed heart-felt statements of appreciation to Mr. Verlo, Ms. McDonnell, and others holding signs.

43. Mr. Verlo and Ms. McDonnell ultimately left Jeppesen Terminal.

44. Mr. Verlo and Ms. McDonnell wish to return to Jeppesen Terminal to express solidarity with Muslims and opposition to the Muslim Ban, but are reticent to do so for fear of being arrested.

45. Upon information and belief, no individual has been arrested, or threatened with arrest, for wearing a “Make America Great Again” campaign hat without a permit within the Jeppesen Terminal at Denver International Airport.

46. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign welcoming home a member of our military without a permit within the Jeppesen Terminal at Denver International Airport.

47. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign and soliciting passengers for a limousine without a permit within the Jeppesen Terminal at Denver International Airport.

48. Upon information and belief, no individual has been arrested, or threatened with arrest, for discussing current affairs with another person without a permit within the Jeppesen Terminal at Denver International Airport.

49. At all times relevant to this Complaint, Defendants acted under color of law.

CLAIM I: FIRST AMENDMENT
(§ 1983 violation – all Defendants)

50. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.

51. Regulation 50 violates the Free Speech Clause of the First Amendment to the Constitution, on its face and as applied, because it impermissibly curtails Plaintiffs’ free-speech rights.

52. Plaintiffs wish to speak on a matter of public concern. 11

53. Denver International Airport’s Jeppesen Terminal is a public forum.

54. Regulation 50 directly infringes upon and chills reasonable persons from engaging in activity that is protected by the First Amendment.

55. Regulation 50 acts as an unconstitutional prior restraint on speech because it (1) requires a permit before allowing individuals to engage in speech, (2) allows for arbitrary and/or discriminatory permit denials, and (3) requires advance notice that is unconstitutionally excessive.

56. Regulation 50 is overbroad.?

57. Regulation 50 is not narrowly tailored to serve a compelling government interest.?

58. Regulation 50 does not further a substantial government interest.?

59. Regulation 50’s restriction on expressive conduct is greater than necessary to further any
government interest.?

60. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly or
proximately, Plaintiffs to suffer damages.

CLAIM II: FIRST AMENDMENT RETALIATION
(§ 1983 violation – all Defendants)

1. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein. ?

2. Plaintiffs engaged in First Amendment protected speech on a matter of public concern ?while displaying signs opposing President Trump’s Muslim Ban on January 29, 2017.

3. Defendants jointly and on their own accord responded to Plaintiffs’ First Amendment protected speech with retaliation, including but not limited to threatening Plaintiffs with arrest.

4. Defendants retaliatory actions were substantially motivated by Plaintiffs’ exercise of their First Amendment rights.

5. By unlawfully threatening Plaintiffs with arrest, Defendants sought to punish Plaintiffs for exercising their First Amendment rights and to silence their future speech. Defendants’ retaliatory actions would chill a person of ordinary firmness from engaging in such First Amendment protected activity.

6. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

CLAIM III: FOURTEENTH AMENDMENT DUE PROCESS
(§ 1983 violation – all Defendants)

7. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein.

8. The prohibitions of Regulation 50 are vague and not clearly defined. ?

9. Regulation 50 offers no clear and measurable standard by which Plaintiffs and others can ?act lawfully.

10. Regulation 50 does not provide explicit standards for application by law enforcement officers.

11. Regulation 50 fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and authorizes or encourages arbitrary and discriminatory enforcement, or both.

12. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against Defendants, and grant:

(a) Appropriate declaratory and other injunctive and/or equitable relief; 13

(b)  Enter a declaration that Regulation 50 is unconstitutional on its face and enjoin its enforcement; ?

(c)  Compensatory and consequential damages, including damages for emotional distress, loss of reputation, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial; ?

(d)  All economic losses on all claims allowed by law; ?

(e)  Punitive damages on all claims allowed by law and in an amount to be determined ?at trial; ?

(f)  Attorney’s fees and the costs associated with this action, pursuant to 42 U.S.C. § ?1988; ?

(g)  Pre and post-judgment interest at the lawful rate; and ?

(h)  Any further relief that this court deems just and proper, and any other relief as ?allowed by law. ?

Dated this 6th day of February 2017.

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty

___________________________________
David A. Lane
?Andy McNulty?
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400 Denver, Colorado 80202?
Attorneys for Plaintiff

2. Full text of Feb 6 motion for preliminary injunction:

Case 1:17-cv-00332 Document 2
Filed 02/06/17 USDC Colorado Page 1 of 23

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, hereby submit the following Motion for Preliminary Injunction, and in support thereof, states as follows:

1. Introduction

Over the last four days, many Americans have expressed public disapproval of President Donald Trump’s January 27, 2017, Executive Order, which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit). Plaintiffs are concerned and alarmed United States citizens who wish to join the growing chorus of voices expressing opposition to the Executive Order. To do so, they wish to stand in silent protest at the Jeppesen Terminal within Denver International Airport.

Plaintiffs did just this on January 29, 2017, standing in silent protest of the Executive Order outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within Jeppesen Terminal. Almost immediately, Plaintiffs were threatened with arrest by Denver Police Department Sergeant Virginia Quinones for standing silently and holding signs opposing the Executive Order, despite that fact that the Jeppesen Terminal has previously been used for expressive activity (and that protesters at more than ten major airports nationwide have protested peacefully without major disruption or legal restriction). While silently displaying their signs, Plaintiffs were in the plaza within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand, in the open plaza outside of the secure CBP screening area at the Jeppesen Terminal. Plaintiffs did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

Even though Plaintiffs were simply engaged in peaceful First Amendment protected expression, they were threatened with arrest. Sergeant Quinones informed Plaintiffs that, in order to stand silently with political signs, they would need a permit. Without a permit, Sergeant Quinones stated, all “First Amendment expression” at the Denver International Airport was banned.

This was not the first time since the enactment of the Executive Order that the Denver Police Department threatened individuals with arrest for engaging in First Amendment protected activity in Jeppesen Terminal. On January 28, 2016, a protest was held in the plaza of Jeppesen Terminal. During the protest, Denver Police Commander Antonio Lopez instructed multiple individuals, including State Representative Joseph Salazar and representatives from the ACLU of Colorado, that all “First Amendment expression” was banned at Denver International Airport without a permit. See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2. The protesters had, in fact, applied for a permit earlier that day. However, it had not been granted because they had not done so seven days in advance of the protest in compliance with Denver International Airport regulations. Although no arrests were ultimately made, protesters were threatened numerous times by Commander Lopez, and other officers, with arrest.

The Denver International Airport regulation that both Sergeant Quinones and Commander Lopez relied upon in instructing Plaintiffs, and others, that Denver International Airport bans all “First Amendment expression” without a permit is DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”). Regulation 50 states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

Plaintiffs wish to return to Denver International Airport to protest the Executive Order, but are reasonably frightened of arrest and, absent action by this Court, must choose between lawfully exercising their First Amendment right and being subject to arrest and/or prosecution.

Plaintiffs ask that this Court enter an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.

2. Factual Background

All statements of fact set forth in the simultaneously filed Complaint are hereby incorporated into this Brief as though set forth fully herein.

3. Argument

3.1 The standard for issuance of a preliminary injunction.

When seeking a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm; (3) the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999).

The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006); see also 820 F.3d 1113, n.5 (10th Cir. 2016). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). Moreover, this “fair chance of prevailing” test is appropriate in this case because Plaintiffs are challenging a policy, not a statue or ordinance. See Planned Parenthood Minn, N.D., & S.D. v. Rounds, 530 F.3d 724, 732 (9th Cir. 2008) (“[C]ourts should… apply the familiar ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.”).

Under either standard, Plaintiffs are able to demonstrate that the issuance of a preliminary injunction is appropriate in this matter.

3.3 Regulation 50 implicates Plaintiffs’ First Amendment rights. 1

When the government regulates the exercise of First Amendment rights, the burden is on the proponent of the restriction to establish its constitutionality. Phelps-Roper v. Koster, 713 F.3d 942, 949 (8th Cir. 2013). Moreover, when assessing the preliminary injunction factors in First Amendment cases, “the likelihood of success will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). This is because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably, constitutes irreparable injury,” Heideman v. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003), and it is invariably in the public interest to protect an individual’s First Amendment rights. See Homans v. City of Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (noting that “the public interest is better served” by protecting First Amendment rights).

[NOTE 1. It is important to note that facial challenges to government policies and statutes, when based on First and Fourteenth Amendment grounds, are not disfavored. See United States v. Stevens, 559 U.S. 460, 473 (2010); City of Chicago v. Morales, 527 U.S. 41 (1999).]

3.4 Plaintiffs are likely to succeed on the merits.

Plaintiffs are likely to succeed on the merits because Regulation 50 violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

3.4(a) Plaintiffs engaged, and wish to engage, in speech on a matter of public concern.

Plaintiffs’ speech is at the core of the First Amendment’s protection because it deals with a matter of public concern. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks and citation omitted). “Speech on matters of public concern is at the heart of the First Amendment’s protection.” Id. at 451-52 (alterations and quotation marks omitted). “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Plaintiffs wish to engage in expression about President Donald Trump’s January 27, 2017, Executive Order, a topic that has generated nearly unprecedented debate and dissent. See Adrienne Mahsa Varkiani, Here’s Your List of All the Protests Happening Against the Muslim Ban, THINK PROGRESS (Jan. 28, 2017), https://thinkprogress.org/muslim-ban-protests-344f6e66022e#.ft1oznfv4 (compiling list of direct actions planned in response to President Trump’s January 27, 2017, Executive Order). Thus, Plaintiffs’ speech “‘occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’” Snyder, 562 U.S. at 452 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

3.4(b) Regulation 50 acts as a prior restraint.

The restriction at issue in this matter is a prior restraint. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984)). Regulation 50 is in an administrative order that forbids future communication and bases the ability to communicate in the future on the discretion of an administrative official. See DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” (emphasis added)). It is a prior restraint.

The burden of proving a prior restraint is permissible is particularly steep. The Supreme Court has repeatedly held that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). For the reasons outlined infra, Defendants cannot meet this especially significant burden.

3.4(c) Jeppesen Terminal, outside of the passenger security zones, is a traditional public forum.

The Supreme Court has not definitively decided whether airport terminals, including Jeppesen Terminal, are public forums. In Lee v. International Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992) (hereinafter “Lee I”), issued the same day as International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (hereinafter “Lee II”), the Supreme Court struck down a total ban on distribution of literature in airports. In Lee I, the Court issued a one sentence per curiam opinion, which affirmed the Second Circuit for the reasons expressed by Justice O’Connor, Justice Kennedy, and Justice Souter in Lee II. See Lee I, 505 U.S. at 831. Justice Kennedy and Justice Souter’s opinions in Lee II found that “airport corridors and shopping areas outside of the passenger security zones… are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles.” Lee II, 505 U.S. at 693 (Kennedy, J., concurring in the judgment); but see Lee II, 505 U.S. at 683 (“”[W]e think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”).

Therefore, Plaintiffs ask this Court to find the area of Jeppesen Terminal outside of the passenger security zones to be a public forum. The historical use of the Jeppesen Terminal’s plazas and other areas outside of the passenger security zones (including the area outside of the secure CBP screening area) for political speech (particularly, the history of welcoming of American military personnel home from service, discussion between passengers of matters of public concern, and display of clothing advocating for political views and ideals) indicates that it is a public forum. See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002) (“Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.”). Further, that the Jeppesen Terminal is free and open to the public (outside of the passenger security zones), illustrates that it is a public forum. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800, 805, 809 (1985). Finally, Jeppesen Terminal retains characteristics similar to parks: it has large plazas lined with benches, it is surrounded by businesses which are open to the public, and it has dedicated walkways, similar to sidewalks, indicating that it is a public forum. See e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988); United States v. Grace, 461 U.S. 171, 177 (1983). Further, the Supreme Court has not strictly limited the public forum category to streets, sidewalks, and parks. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (finding leased municipal theater is a public forum); Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (finding state fair is a public forum); Edwards v. South Carolina, 372 U.S. 229 (1963) (finding grounds of state capitol are a traditional public forum). Even if the City claims that it has never intended for Jeppesen Terminal to be a public forum, this is not dispositive. See Lee, 505 U.S. at 830 (government policy prohibiting distribution of literature at airport on property struck down); Cornelius, 473 U.S. at 805 (government’s decision to limit access is not itself dispositive). Plaintiffs’ ask that this Court find Jeppesen Terminal, outside of the passenger security zones, a traditional public forum.

Since Jeppesen Terminal is a traditional public forum, any restriction on Plaintiffs’ speech must be content-neutral and narrowly tailored to a compelling government interest. Regulation 50 fails at both.

3.4(d) Regulation 50 is content-based.

Regulation 50 is a content-based restriction of expression. Although the Supreme Court has long held that content-based restrictions elicit strict scrutiny, see, e.g., Carey v. Brown, 447 U.S. 455 (1980), lower courts diverged on the meaning of “content-based” until Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). 2 Reed clarified that a restriction is content based simply if it draws distinctions “based on the message a speaker conveys.” 135 S. Ct. at 2227. Reed is clear that even “subtle” distinctions that define regulated expression “by its function or purpose . . . are distinctions based on the message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. This accords with Texas v. Johnson, which held that “the emotive impact of speech on its audience is not a secondary effect unrelated to the content of the expression itself.” 491 U.S. 491 U.S. 297, 412 (1989) (internal quotations omitted).

[NOTE 2. Reed involved a municipal “sign code” that regulated signs differently based on the kind of message they conveyed (such as “ideological,” “political,” or “temporary directional”). 135 S. Ct. at 2224-25. The Court rejected the city’s argument that a law had to discriminate against certain viewpoints in order to be a content-based restriction. Id. at 2229.]

Regulation 50 is content-based on its face. It distinguishes between content and requires that an official determine the content of the speaker’s message when enforcing its proscriptions. Reed, 135 S. Ct. at 2227; see DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute[.]” (emphasis added)). The distinctions drawn by Regulation 50 make it a facially content-based restriction on expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412; Reed, 135 S. Ct. at 2227.

3.4(e) Regulation 50 is not narrowly tailored to serve a compelling government interest.

As a facially content-based restriction of expression at traditional public fora, Regulation 50 is presumptively unconstitutional unless Defendant “prove[s] that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 St. Ct. at 2231; accord Johnson, 491 U.S. at 412.

“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988) (citation omitted). Regulation 50 reaches more speech than that which would impair the security of the airport or ensure that passengers are not unduly encumbered. In fact, it completely bans all “First Amendment expression.” “A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id.. Regulation 50 is not such a ban. For instance, Plaintiffs’ expression does nothing to jeopardize security at Denver International Airport or to inhibit the free flow of passengers through the airport.

Further, any argument that Plaintiffs can engage in expressive activity in another location lacks merit, as the Supreme Court has held that the First Amendment is violated when one specific location or audience, when important to the speaker, is foreclosed. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014); Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997) (invalidating a “floating” buffer zone around people entering an abortion clinic partly on the ground that it prevented protestors “from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks”); Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (invalidating anti-handbilling ordinances even though “their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places”). Regulation 50 lacks the narrow tailoring necessary to survive First Amendment strict scrutiny analysis.

3.4(f) Regulation 50 violates the First Amendment even if this Court determines Jeppesen Terminal is a nonpublic forum.

Regulation 50 bans all “First Amendment expression” absent a permit; it is unconstitutional even when analyzed under the lower standard of scrutiny applied by courts to First Amendment political speech in a nonpublic forum. In Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), the Supreme Court considered whether a resolution restricting free speech in the airport was constitutional. The resolution at issue stated that the airport “is not open for First Amendment activities by any individual and/or entity.” Id. at 574. Although the Court did not explicitly find that the airport was a nonpublic forum, it did hold that the resolution restricting speech in the airport was facially unreasonable, even if the airport was a nonpublic forum. Id. at 573. The Court noted that enforcing the resolution would prohibit “talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574. The Court also noted, “[m]uch nondisruptive speech–such as the wearing of a T-shirt or button that contains a political message–may not be ‘airport related’ but is still protected speech even in a nonpublic forum.” Id. at 575 (citing Cohen v. California, 403 U.S. 15 (1971) (holding that wearing of jacket with offensive language in a courthouse was a form of nondisruptive expression that was protected by the First Amendment)). Thus, although specific conduct was not at issue in the Jews for Jesus decision, the Court nonetheless implicitly held that non-disruptive speech is protected by the First Amendment in nonpublic fora and that restrictions that encumber non-disruptive expression are unreasonable.

In Lee II, Justice O’Connor set forth the test for determining reasonableness in the context of nonpublic fora. 505 U.S. at 687 (O’Connor, J., concurring). 3 She stated, ”[t]he reasonableness of the Government’s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Id. (O’Connor, J., concurring) (quoting Cornelius, 473 U.S. at 809). However, Justice O’Connor noted that while “[o]rdinarily . . . we have . . . been confronted with cases where the fora at issue were discrete, single-purpose facilities,” airports present a different analysis because they are multipurpose facilities. Id. at 688 (O’Connor, J., concurring) (citations omitted). She determined airports to be multipurpose facilities because

the Port Authority [has] chosen not to limit access to the airports under its control, [and] has created a huge complex open to travelers and nontravelers alike. The airports house restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices and private clubs.

Id. This led to the finding that “[t]he reasonableness inquiry, therefore, is not whether the restrictions on speech are consistent with preserving the property for air travel, but whether they are reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id. at 689. A complete ban on First Amendment activity at the Jeppesen Terminal, absent a permit that must be obtained by providing seven days advance notice, is not a reasonable restriction. Regulation 50 does not comport with Justice O’Connor’s conclusion that airports are more than simply places where air travel occurs.

[NOTE 3. It is important to note that Lee involved a plurality opinion, joined by Justice O’Connor. Therefore, Justice O’Connor’s concurrence is the “narrowest grounds” that justify the Court’s result and her concurrence holds substantial precedential weight.]

Moreover, Justice O’Connor distinguished between solicitations (which the Supreme Court found could be reasonably restricted) and distributing leaflets (which the Supreme Court found could not be reasonably restricted) in the airport:

[L]eafleting does not entail the same kinds of problems presented by face-to-face solicitation. Specifically, “one need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand . . . . The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.”

Id. at 690 (quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)).

Thus, the Court held in Lee II that prohibiting solicitation in a nonpublic forum is not unreasonable, but that prohibiting the distribution of leaflets and other literature at a nonpublic forum is unreasonable. See also Lee, 505 U.S. at 830 (decided the same day as Lee II and striking down a prohibition on the distribution of leaflets and other literature at La Guardia, John F. Kennedy, and Newark International airports) (per curiam). Circuit courts have also recognized the inherent right to distribute paper and other information in nonpublic fora. Following Lee I and Lee II, two circuit courts have held that airports, as nonpublic fora, could not preclude newspaper publishers from placing newsracks in airport terminals. See Jacobsen v. City of Rapid City, South Dakota, 128 F.3d 660 (8th Cir. 1997); Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993). To the extent that the airports were concerned about safety or the impediment of traffic flow, the courts held that the airport may impose reasonable restrictions, but they could not enforce an outright ban on the newspaper racks. See Jacobsen, 128 F.3d at 660; Multimedia Publishing Co. of South Carolina, Inc., 991 F.2d at 154.

Denver, through Regulation 50, has banned all “First Amendment expression” including leafleting and protests. In fact, Plaintiffs expression is arguably less intrusive and disruptive to air travel than the form of expression, namely leafletting, that the Court held could not be reasonably restricted in the areas of an airport that precede the security screening area. It is clear from Lee I, Lee II, and Jews for Jesus that Denver cannot ban all “First Amendment expression” at the Jeppesen Terminal.

3.4(f)(1) Independently, the viewpoint-based prohibition of Plaintiffs’ speech, based on Regulation 50, violates the First Amendment.

Even if Jeppesen Terminal is a nonpublic forum, “this does not mean the government has unbridled control over speech, . . . for it is axiomatic that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (quoting Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, (1993)). “Restrictions on speech in nonpublic fora must be viewpoint neutral[.]” Warren v. Fairfax Cty., 196 F.3d 186, 193 (4th Cir. 1999) (citing Cornelius, 473 at 809). Defendants’ restriction of Plaintiffs’ speech, under the guise of Regulation 50, discriminates on the basis of viewpoint. Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest. Regulation 50 is being enforced as a clearly view-point based restriction. Defendants’ application of Regulation 50 to Plaintiffs speech is view-point based and violates the First Amendment.

3.4(g) The seven day advance notice requirement for obtaining a permit is not a reasonable restriction.

Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. Plaintiffs, like many others throughout history, wish to engage in First Amendment expression in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. See American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”).

Advance notice requirements that have been upheld by courts have most generally been less than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is reasonable for use of National Park areas in District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir. 1968) (two-day advance notice requirement for parade is reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054, 1059 (D. Mass. 1980) (three-day advance filing requirement for parade permit approved in context of broader challenge); Jackson v. Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain permit by 4 p.m. on day before the march), aff’d, 442 F.2d 928 (5th Cir. 1971). Lengthy advance filing requirements for parade permits, such as the seven day advance notice requirement imposed by Regulation 50, have been struck down as violating the First Amendment. See American-Arab Anti-Discrimination Comm., 418 F.3d at 605-07 (holding that provision requiring thirty days’ notice is overbroad and is not saved by an unwritten policy of waiving the provision); NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) (“[A]ll available precedent suggests that a 20-day advance notice requirement is overbroad.”). Even an advance filing requirement of five days has been held too long to comport with the First Amendment. See Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (city’s asserted goals of protecting pedestrian and vehicular traffic and minimizing inconvenience to the public does not justify five-day advance filing requirement for any parade, defined as ten or more persons).

It is clear that, in the case at bar, a permit requirement of seven days advance notice is not a reasonable restriction of Plaintiffs’ First Amendment rights. Plaintiffs wish to engage in timely, direct action against, what they perceive as, a tyrannical and unconstitutional exercise of the executive power. If Plaintiffs were to have applied for a permit at the exact moment President Trump signed the Executive Order, they would still have been prevented from engaging in First Amendment activity on January 29, 2017. In direct action, like in most things, timing is everything. As evidenced by myriad protests that occurred across the nation’s airports, which were accompanied by no violence or destruction of property and did not otherwise jeopardize security, accommodation of protest at the Jeppesen Terminal is reasonable. Such a lengthy approval period, with no exceptions for spontaneous, peaceful protests, violates the First Amendment. See Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (noting that “the length of the required period of advance notice is critical to its reasonableness; and given … that political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech” (emphasis added)).

3.4(h) Regulation 50 is overbroad in violation of the First Amendment.

“[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the [ordinance]’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). An overbroad statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it. City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) (“[B]roadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.”). The Supreme Court “has repeatedly held that a government purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964); see also Grayned v. City of Rockford, 408 U.S. 109, 114-15 (1972) (“The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.”). Courts have “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

Determining whether a law is substantially overbroad requires a two-step analysis. First, a court must “construe the challenged [law]; it is impossible to determine whether a [law] reaches too far without first knowing what the [law] covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Second, based on the first step, a court must determine whether the law “criminalizes a substantial amount of protected expressive activity.” Id. at 297.

Regulation 50 provides that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” Those tasked with enforcing Regulation 50, have stated that it bans all “First Amendment expression.” See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2.

A complete prohibition on First Amendment expression and related activity proscripts a substantial amount of protected expressive activity. See Jews for Jesus, 482 U.S. at 569; Lee, 505 U.S. at 830. It prohibits face-to-face conversations and wearing clothing intended to convey a message, along with leafleting and other traditional First Amendment activity, all of which protected expression. Regulation 50’s overbreadth is stark and violates the guarantees of the First Amendment.

3.4(i) Regulation 50 is unconstitutionally vague.

“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “A law’s failure to provide fair notice of what constitutes a violation is a special concern where laws ‘abut[ ] upon sensitive areas of basic First Amendment freedoms’ because it ‘inhibit[s] the exercise’ of freedom of expression and ‘inevitably lead[s] citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Stahl v. City of St. Louis, 687 F.3d 1038, 1041 (8th Cir. 2012) (quoting Grayned, 408 U.S. at 109). For this reason, a stringent vagueness test applies to a law that interferes with the right of free speech. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

Regulation 50 is vague, and therefore unconstitutional, for two separate reasons. First, Regulation 50 fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999). A law is unconstitutionally vague where it “does not provide people with fair notice of when their actions are likely to become unlawful.” Stahl, 687 F.3d at 1041. Because violators of Regulation 50 are subject to criminal sanction, the strictest vagueness test applies. See Reno v. ACLU, 521 U.S. 844, 872 (1997) (recognizing criminal sanctions might “cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images” which, together with the “‘risk of discriminatory enforcement’ of vague regulations, poses greater First Amendment concerns than those implicated by [a] civil regulation[.]”). Whether expressive activity will be deemed “First Amendment expression” in the Jeppesen Terminal is not predictable. Plaintiffs have reasonably refrained from protected speech for fear that someone might consider their expression to be in violation of the regulation. However, officials have failed to enforce the regulation against many others who are seemingly in violation, including those discussing politics with other passengers, wearing clothing meant to make some social or political statement, limo drivers soliciting passengers, and those welcoming home military veterans. Although there might be times when a speaker knows, or should know, that certain speech will violate the statute, in many situations such an effect is difficult or impossible to predict. See Stahl, 687 F.3d at 1041 (finding vagueness because even “[t]hough there are certainly times when a speaker knows or should know that certain speech or activities likely will cause a traffic problem, in many situations such an effect is difficult or impossible to predict.”). Regulation 50 fails to give fair notice and therefore violates the mandates of the Fourteenth Amendment.

Regulation 50 is also unconstitutionally broad because it “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S. at 56. Regulation 50’s terms allow law enforcement officials wide discretion to decide whether any given speech is prohibited and arrest the speaker. “Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.” Cox v. Louisiana, 379 U.S. 536, 579 (1965); see Norton v. Discipline Comm. of E. Tenn. State Univ., 399 U.S. 906, 909 (1970) (“Officials of public universities . . . are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.”).

Officers have been observed enforcing Regulation 50 against those protesting President Trump’s Executive Order, but not against those wearing other political shirts or buttons. Officers have not enforced the regulation against other political expression, including those standing in support of military veterans returning home from combat. Seemingly, the only ones who have been subject to this regulation are those who are specifically speaking against President Trump’s Executive Order. “The most meaningful aspect of the vagueness doctrine is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574. Because the terms allow a police officer leeway to determine that expressive conduct is lawful, or not, they are vague. Regulation 50 permits “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (internal citations omitted). It is unconstitutional.

3.5 Absent an injunction, Plaintiffs will suffer irreparable harm.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016); Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016).

Moreover, Plaintiffs’ expression is a time-sensitive response to a nearly unprecedented action by our federal government. But see C. Norwood, A Twitter Tribute to Holocaust Victims, THE ATLANTIC (January 27, 2017), https://www.theatlantic.com/politics/archive/2017/01/jewish-refugees-in-the-us/514742/ (describing the rebuff of refugees fleeing Nazi Germany in 1939, many of whom would be murdered during the Holocaust); Korematsu v. United States, 323 U.S. 214 (1944). Delaying Plaintiffs’ protest, and discouraging Plaintiffs and others from demonstrating, detracts from its importance and provides a false appearance that Denver is not like other cities of all sizes across the country that have mustered sizeable protests at their airports. Denver has held itself out as a “sanctuary city.” Jon Murray, Mayor Hancock says he welcomes “sanctuary city” title if it means Denver supports immigrants and refugees, The DENVER POST (January 30, 2017), http://www.denverpost.com/2017/01/30/mayor-hancock-welcomes-sanctuary-city-title-denver-supports-immigrants-refugees/. For Colorado’s citizens to seemingly show lackluster support in this time of trial would not only irreparable harm Plaintiffs, and others, but it would go against the public interest.

3.6 The balance of the equities weighs in favor of granting a preliminary injunction.

“The balance of equities… generally favors the constitutionally-protected freedom of expression.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). Courts have consistently held that when First Amendment freedoms are threatened, the balance of the equities weighs in the Plaintiffs’ favor. See Verlo, 820 F.3d at 1127; Awad, 670 F.3d at 1132. There is no harm to Defendant, who has no significant interest in the enforcement of Regulation 50 since it is likely unconstitutional.

3.7 A preliminary injunction is in the public interest.

“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1133 (internal quotation marks omitted); accord Verlo, 820 F.3d at 1127; Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”); Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

4. Conclusion

For the reasons stated, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction, enjoin enforcement of Regulation 50, and prohibit Defendants from arresting Plaintiffs and all others similarly situated when they engage in First Amendment protected activity within Jeppesen Terminal.

Dated this 6th day of February, 2017

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
__________________________

David Lane
Andy McNulty
1543 Champa Street, Suite 400 Denver, CO 80202
Counsel for Plaintiffs

Yellen, Lagarde, Merkel, & May, already give us a taste of women-led injustice.

When Hillary Clinton ascends to the US presidency, she’ll join a girls club of world leaders who’ve already shown that the feminine gender doesn’t lack for sociopaths. It may be hard to know whether IMF head Christine Lagarde or FED chair Janet Yellen are mere figureheads or cold-blooded usurers in their own right. The UK’s Theresa May hasn’t had a chance yet to flex her Thatcherism, but few dispute that Angela Merkel’s power is not as authentic as it is heartless. Those Americans campaigning for Hillary Clinton based on the assumption that women leaders could not possibly fail to restore humanity to a capitalist war-ravaged world, are ignoring the maternal instinct already disappointing on the world stage.
 
When the fracking industrialists came to Colorado Springs, they hired a white-haired grandmother to be their liaison to the city council. Predictably her fracking sold like hotcakes, if you’ll pardon the sexist analogy. Hillary is the frackers’ point-person to the unexploited regions of the world regardless of whether they beckon from war zones to be.

Insightful photos of Hillary Trump

Hillary TrumpI’ve been laughing at this photo for so long now that I’m not certain it is a photoshop mashup. It may be possible that Hillary and the Donald share the same face. Their only difference is gender, maybe. Hillary feminists are counting on their candidate’s inherent maternal instinct to subvert her just one of the boys warhawkish temperment. I’m not convinced sociopathology reflects gender. If we want a bonafide benevolent mother, we might start with one that hasn’t authored mass infanticide.

Hillary Trump

Donald Clinton

War criminals occupy a more “special place in Hell” than young women who don’t vote for Hillary


Did you see how Hillary Clinton BEAMED as she accepted Madelyn Albright’s endorsement for president? Albright explained there was a “special place in hell” for young women who didn’t support women candidates. There are endless good reasons to elect women. Does Albright know any good women?

Madelyn Albright is of course a glaring exception to the hypothesis that a world led by woman would end war and injustice. Albright, like Condi Rice, Margaret Thatcher, and Hillary Clinton, is proof that the gender line does not filter for sociopaths. Albright famously declared the death of a half million Iraqi babies to be acceptable collateral damage in the US effort to depose Saddam Hussein. Clinton’s murderous tenure has well surpassed Albright’s. Both act like they haven’t read Dante’s guidebook which describes the special place they’re going.

Requiring activists to “make space” for black or brown voices, if apolitical or reformist, is a counterinsurgency trap.

 
 

 
OFF-STREET ACTIVISM floweth over with do-gooders begging for a seat at the table, literally, tables, where the powers-that-be want them. Street protest organizers are berated about providing forums for disenfranchised voices, as if indoor choir-singing yields redress of grievances. Leaders of disadvantaged communities mistake cis-gendered, white activists for their actual oppressors, because that’s easier than facing down the police. But the dynamic is disingenuous subterfuge and it’s not coming from the allies who matter. The people of Ferguson did not wait for white social justice groups to “make space” for their protest. You’d think the lesson of Ferguson is obvious.

Across non-Ferguson, religious community leaders and token spokespeople of color insist that they should monopolize local manifestations of anti-racism movements. Never mind that their call is for people to sit in church pews, meet with cops, vote, GOTV, petition, or join intra-city marches to nowhere, nowhere more than away from urban uprisings. In Denver I have never seen black resistance voices or leadership unwelcome at any rally no matter the subject. But I have seen tokenism at #BlackLivesMatter events used to discredit radicals and diffuse public outcry.

The making space argument certainly applies to entrenched nonprofit leadership but among militant voices it’s a laugh. If anyone is oppressing upstart minority voices it’s the seniority membership who don’t want unscheduled rocking of the boat. Reformist claptrap is the police state’s first line of defense.

“Black Lives Matter” must be shouted loudly even if your token black appointees won’t. Don’t mind the usual detractors peddling apolitical identity politics, let’s call them IDENTITY A-POLITICS, they’re a counter-revolutionary tactic to divide natural allies. This has been used against insurgents across the country, from Deep Green Resistance to Occupy, as fly-paper to waylay alliances or force effective organizations to go down the old rabbit holes occasioned by the usual novice errors.

Ferguson has shown the way. The anniversary of Mike Brown’s killing on August 9, 2014, correctly commemorates the public uprising not the policeman’s bullet. Unsurprisingly the early emphasis is being placed on ensuring crowd anger doesn’t get out of control. The eyes on the ball, whether blue or brown, focus on the racist police state.

The Black Lives Matter activists who interrupted Netroots Nation shared knowing themes through a people’s mic. Here’s a transcript of what they chanted until shut down by the speakers on stage.

If I die in police custody.
#BlackLivesMatter at #netrootsnation

If I die in police custody,
Do not let my parents talk to
Don Lemon, Al Sharpton, Jesse Jackson,
Or any of the motherfuckers
Who would destroy my name.
Let my parents know
That my sisters got this.
If I die in police custody,
Say my name, say my name.
Say the name that I chose,
Not the one that I was given.
If I die in police custody,
Make sure that I am remembered.
Make sure my sisters are remembered.
Say their names. Say their names.
If I die in ICE custody,
Say that I am not a criminal.
Stop funding prisons and detention centers!
Shut ICE down and our county jails and our prisons,
Not one more deportation!
If I die in police custody,
Know your silence helped kill me.
White Supremacy helped kill me.
And my child is parentless now.
If I die in police custody,
Know that I want to live!
We want to live!
We fight to live!
Black Lives Matter!
All Black Lives Matter!
If I die in police custody,
Don’t believe the hype, I was murdered!
Protect my family!
Indict the system!
Shut that shit down!
If I die in police custody,
Avenge my death!
By any means necessary!
If I die in police custody,
Burn everything down!
Because no building is worth more than my life.
And that’s the only way motherfuckers like you listen!
If I die in police custody,
Make sure I’m the last person to die in police custody.
By any means necessary!
If I die in police custody,
Do not hold a moment of silence for me!
Rise the fuck up!
Because your silence is killing us!

President Obama tells undocumented transgender Jennicet Gutierrezas that the White House is not her house.


So President Obama silenced a heckler by telling her “This is my house”, sorry, um, no. Immigrant and LGBTQ rights activist Jennicet Gutierrezas was vetted by security and was a guest of the president, to engage as a host would hope his guests might. The theme was Gay Pride! According to Obama, an invitation to the White House means you eat his hors d’oeuvres and drink his booze and shut your mouth or be thrown out. I doubt President Obama was saying anything more important than Gutierrezas, who spoke up for the plight of transgender deportees. In fact Obama misspoke. To his First Daughters he can say “you’ll follow my rules when you live in my house”, but to a fellow American it’s not his house but OURS.

You might correct me to say that Gutierrezas was not a citizen-subject but an undocumented immigrant, to which I say, the greater the shame on President Obama, smug in his disregard for those with no agency.

I applaud Gutierrezas who braved the President talking over her, and defied a crowd of Pride celebrants drowning her out with the three-beat chant normally the repertoire of anti-activists. The other guests showed no solidarity but laughed and applauded President Obama’s condescending repartees. The event left Gutierrezas heartbroken.

Have you seen the footage? Obama is a dick. And goddamn the Pride celebrants who immediately booed Gutierrezas. One might think they were being feted at the White house for their activism.

When the president threatened to have Gutierrezas “taken out” I cannot have been the only one to wonder if Obama dispatches his Kill List with the same callous mirth.

Vanity Fair cover spotlights a gender trait Caitlyn Jenner didn’t nip or tuck: male privilege.

Thank you Bruce now Caitlyn Jenner for stepping up to be an olympian standard-bearer to assail the stigma of gender dysphoria. Caitlyn’s reveal on the cover of Vanity Fair is a triumph, for transexuals and, one might hope, “women of a certain age”. But that it certainly is not. Caitlyn owes her magazine cover to her celebrity power of course, to sensationalism, and above all to her male privilege.

And there we have the distinction feminists have long drawn between their struggle and that of man-made women. It’s not about whose struggle is greater. But it’s not the same struggle.

As a woman, Jenner now faces every traditional gender disadvantage except obviously the wage gap. With another exception. If you doubt that Caityn Jenner has yet to shed her alter ego’s male privilege, ask yourself when was the last time Vanity Fair put a 65 year old woman on their cover, wearing a bunny suit? Not that female celebrities even twenty years younger would likely consent to being presented as corseted sexpots.

Jenner claimed in her interview that she is asexual, maybe to un-complicate the anticipated male gaze. Or maybe that’s one hurdle too far for our reality-phobic media which needs to repress sex to sell it.

So Vanity Fair couldn’t help but sexualize the cover, but it leaves viewers with nothing to glean but narcissism. Can we fail to feel in Jenner’s gaze, the arrogance of a conquerer? That’s not an attribute exclusive to masculinity, but Jenner’s comes of privilege.

The Wheaties box superhuman decathlete had her beefcake and now she intends to eat it. No one says a trans feminine must be a shrinking violet, but the public reaction has been to coddle Jenner for her courageous act, though it seems clearly an act. When Jenner came out in April, she predicted a “wild ride”. What the audience took for trepidation was really an artful teaser for the magazine cover and the reality TV specials already in the works. Jenner’s Caitlyn races dirt track thrillcraft. Earlier this year she rear-ended a fellow Malibu driver. Jenner’s SUV fatally bumped the woman into oncoming traffic on PCH.

Forty years ago Bruce Jenner defined the hyper-masculine, now Caitlyn claims the impossibly feminine. I see a craftily Botoxed siren and I’m not sure how our culture is served to efface age and gender, especially as human beings, more fragile than we know, yearn to catch on magazine covers authentic reflections of themselves.

Okay, best thing to come out of this? #MyVanityFairCover

Dear Minority Studies INACTIVISTS, quit trying to make the Ferguson protests about you

Unless you are throwing down like Ferguson or their brave comrades in NYC, Oakland, Berkley and other race riot battlegrounds, I’m not interested in your “Dear White People” and “Things White Allies Need to Stop Saying” rants. Your not being White or CIS-gendered may give you insight for schooling your traditional tormentors on privilege, but it hardly qualifies you to wrestle protest actions from their organizers. The inclination to divide and insult with pedantic specious arguments suggests to me you put preening above solidarity. As a white male agitator in the wake of Ferguson, I welcome leadership from communities of color. I’m happy to follow and applaud fresh voices. But they have to be in solidarity with the Ferguson insurgency not its couchsitters. Being African American doesn’t automatically mean you speak for Mike Brown or Eric Garner. Does President Obama speak for African America? Your minority studies parlance may hold sway in academic jousts but has fuck all to do with movement building or hastening their momentum.

“Turn off your cellphone” or police will light you up like the next Chris Dorner


STREAMING OF CONSCIOUSNESS ON BOSTON MARATHON BOMBING DENOUEMENT: DID YOU KNOW that law enforcement can tell you “If you want to live, turn off your cell phone.”? That was shouted to an AP reporter tonight in Watertown, just before he heard officers shout “Fire in the hole” as they encircled a suspect. So they’re chasing a marathon attendee whose face matches the surveillance video, who they can refer to as a suspect with impunity if he’s dead so they’re about to Dorner his ass (Remember Chris Dorner? Remember Waco? The gov-lit inferno, not the gov-neglected “Waco” redux.) to beyond facial recognition. Boston Marathon Bombing solved.

Do cellphone beacons mess with police pyrotechnics like we pretend they do aviation electronics? Or was the officer concerned the reporter might be tweeting, enabling a suspect to triangulate his encirclement on Twitter? I bet the officer just wanted to shoot the reporter if he didn’t jump on command.

We know police have the authority to tell television reporters to turn their cameras away lest they jeopardize a SWAT stakeout. Apparently cameras also endanger oil spill cleanups. Are media reporters complicit or simply that stupid? A recent consensus of journalists asserted to me “they’re stupid” but that’s probably a cop-out, odd expression that, to protect media assets who are as enslaved by the system as police officers or oil workers.

Who knows what’s going on in Boston, er, Watertown. Major sports teams are attributed to greater metropolitan areas. Crimes are branded to satellite communities like Watertown, Mayflower, Aurora, Littleton, aka Boston, Little Rock, Denver, Denver. The point of a press pass is that your objective is supposed to be respected by the authorities. In a police state it means they can treat you like an embedded bitch.

Update: “First suspect” reported to be in custody was captured, released, and also killed. A police briefing just clarified all three congruent incongruities. Police scanner suggests the captured suspect detonated himself in custody. Twitter beat television media by an hour in relaying the development that the first suspect was killed.

Update 2: Hospital which admitted suspect won’t reveal his identity, or extent of his injuries, or his age. They were embarrassed sufficiently to admit they could confirm his gender. Most interesting, the doctor who addressed the press would not say if he worked on the suspect, but described how he had witnessed the gun fight from his home, then dressed and reported to the emergency room before the suspect was transported there. Hmm.

Now they’re evacuating blocks of Watertown, so it’s going to be a MOVE climax. Follow police instructions yes, but call them on bullshit. So far the entire narrative has come from authorities, including the inconsistencies which go unchallenged.

NPR: women berserkers, oil whores, Goebbels Surge, presidential DNA

I accidentally listened to NPR today, what an earful of crap! No wonder Americans are so uninformed, none more than self-identifying progressives, waylaid by Corporate Public shysters. Here’s what I overheard:
 
The Defense Department is running short on recruits so they need to draft women into combat roles. Leon Panetta has righted a constitutional injustice apparently and will deploy women into battle. Because women want equality to torture, join kill squads, shoot children, get PTSD, join ranks of homeless or commit suicide. Greatest gender advance since Virginia Slims.
 
NPR interviewed oil workers who shrug off risk like Algerian massacre and speak fondly of their rape of Africa. According to them it’s “all about the Benjamins” to pay cash for sports cars and ATVs, and international travel for access to “cheap women”. Funny, the interviewees declined to reveal their full names. The energy industry promises jobs, but decent people need not apply.
 
General “All Up In My Snatch” Petraeus is being credited with inventing a counterinsurgency tactic called “the Surge”. Yeah, we’ve heard of it. Formally just a word, the “tactic” is not military, but public relations, attributable to Joseph Goebbels, to minimize an escalation or troop buildup by pretending it’s temporary.
 
The Benghazi Kerfuffle, now a DC sideshow instead of the foreign relations comeuppance where US intervention operatives in Libya got their just-desserts, is being amplified to be a vehicle to kick off Hillary Clinton’s 2016 campaign. The ex Secretary of State was praised for her gravitas and standing, leading MSNBC to suggest that “diplomacy is in her DNA”. Spouses share DNA? Are talking heads confusing DNA with VD?

berserker

Manti Te’o mistery phone paramour is a live person whose name is not Lennay Kekua. That is not the hoax

You’d think that Notre Dame linebacker Manti Te’o would be overjoyed to learn his internet girlfriend’s death was a hoax, that the person with whom he spent days and nights on the phone is alive and well, even if her name isn’t Lennay Kekua. If it’s true the NFL hot-property had never met this posthumous paramour, but fell in love with her over the course of years on the phone, you’d think the bond would be super-ordinary and he’d be on the first plane to meet his miraculously restored Ophelia. The death “hoax” could have a fairytale ending!

(Maybe I’m overestimating the emotional availability of a football player, but that exclamation could be a pun and a twist.)

Evidently Manti Te’o presumes his fabled “Lennay Kekua” by any other name will not smell as sweet. That’s certainly the conclusion a TV audience is meant to infer. The football star’s sagging enthusiasm for his ex phone pal enamorada suggests he might already know her identity doesn’t it? His business-of-football associates don’t seem to show much curiosity either. Is it that Lennay Kekua’s real identity and physical appearance have to be vetted by Notre Dame or by the NFL before they approve a re-engagement with the Manti entity integral to their business plan? No doubt American Football might also not ready for a gender switch, if the phone passed around the locker room in the persona of “Lennay” turns out to be Manti’s “prankster” friend Ronaiah Tuiasosopo.

Macho Manti Te’o is entitled to the private life of his choosing, but when the media money machine plumbs real-life drama to pull the nation’s heartstrings, we’re entitled to see what comes up at the end of the line, especially the more feverishly they try to cut it.

Because isn’t there a real chance here for something transformative? Imagine if Manti Te’o is revealed to be gay, what that could do for traditional divisive stereotypes, blessed by football.

Reality television teases us with the charismatic potential of witnessing real life, but carefully scripts what we see to preclude an unpredictable outcome.

Occupy Wall Street fave Michael Moore does it again, uses Obamacare half- measure to wield Democrat Party whip

Serenading Occupy Wall Street and the sundry nationwide protest camps it engendered, Michael Moore was ecstatic and it seemed, finally over his on-off relationship with the Democratic Party. As bad as he wanted to be, on election years, Moore was always their boy, and now 2012 proves no exception. He’ll tell you the Affordable Care Act is flawed, and only a first step toward universal healthcare, but in a celebratory statement Moore cautions that if the Republicans are let to win in September, Obamacare is gone, and “all of us must now make sure that a second-term Obama continues to move the ball down the field” WTF.

The “War On Women” is a wedge issue

War on Women is a wedge issue
I’ll say this with the sensitivity I know White Males of Privilege have in spades: I’m sorry, isn’t the War On Women an obvious wedge issue? To me it’s the usual progressive ideals versus religious brick wall, meant to divide voters during an election year. Submitting to the traditional patriarchal framing of this debate sets back the goalposts on women’s rights. And where yesterday the public was questioning the undemocratic authoritarian fiscal system which perpetuates, among many ills, gender and social inequalities, now the American population’s better half is being misdirected to the usual Neanderthal bogeyman. Who is against female reproductive choices? The same Scooby-Doo straw villains who keep Gay Marriage in a seesaw of legal battles. The moral struggle against archaic cultural traditions has already been won, but corporate feudal interests pretend that the public they poll would forbid it. It requires a continuous drive, especially if we keep falling for the Kabuki illusion that the end zone grows further off. To women now mobilizing their energies against the so-called W.O.W. I have to say, way to let the ass’s tail wag you. Yes, Rush Limbaugh is doing today’s henchman cameo, yesterday it was the church and the GOP, but who declared this “war” to divide the 51% from the 99%? None other than President Obama with his health care measure meant to provoke church-administered health facilities. You don’t think this was a depth charge set to fire exactly now? As local women’s groups extemporize defensive demonstrations, it will be interesting to see what activism infrastructure already had the astroturf on order.

Tea Partying with the Freak Brothers

Whew! These Occupy posts are far more difficult to pry from myself than their predecessors; the hands-on mechanics of putting the earlier stuff into practice in the present world, amongst the isolated pools of individuated consciousness we humans represent, each with his or her own vision of the whole, has been at the very least disorienting. I’ve lately revived an old motto i swiped from the good people at Oat Willie’s down in Austin, Texas: Onward Through the Fog! How odd is it that i’ve recently connected with some folks that hark back to that place in ways that are deeply surreal. Oat Willie’s and Fat Freddie will seem to be completely out of place in this bit, in which i mean to address the notion of cooperation amongst disparate factions, but not permanently i hope. By the end of this post, i hope to connect Occupy, The Tea Party, disparate passions, and yes, Hippies. It will be necessary to engage in some relatively surreal thinking.

Last night on a new Facebook page, “UNITE: OCCUPY,” (cap lock and all), i got into a conversation about this stuff started by a guy that asked whether anyone thought a joint event between Occupiers and Tea Partiers might be possible. Sure, i said, our Colorado Springs group had lots of Tea Partiers among its earliest enthusiasts, and although many have pulled away, there still exists a close association with many that veer sharply toward the Te Party camp, especially among Ron Paul supporters. The common ground Occupy shares with the Tea Party, at least t a grass root level, is substantial. There can be no doubt of the equally substantial differences. I suspect that it would take some pretty serious ideological barnstorming to bring the two camps together, but nothing prevents the groups from at least tentative discussion to find commonalities.

Tonight our Occupy group staged a talk by Tea Party stalwart, Constitutionalist Mike Holler. Mike seemed for all appearances to be an earnest and well-versed supporter of Constitutional “fundamentalism,” if you will. He peppered his talk with lots of my favorite quotes from my favorite founding fathers. He got a little testy about the revisionist history his kids bring home from college early on–perhaps indicative of one point of separation between Occupiers and Tea Partiers. Some of those are important. Occupy is international, where the Tea Party can display degrees of jingoism. I, personally, respect the earnest efforts of our Enlightenment founders, but recognize that they were flawed, and aver that their document was dated by racist, sexist, and elitist provisions and thinking that they might be excused from by noting their temporal milieu. We don’t have the same luxury. Occupy is legitimately grass root, supported by sweat and blood more than funded, where TP is, or at least became very quickly corporately funded “astroturf,” disingenuously proffering libertarian ideals as a smoke screen for corporate license to plunder. Occupiers are in my experience far more diverse than Tea Partiers. Socialist and Anarchist Occupiers are common, as are assorted races, genders, orientations, and religious persuasions, where Tea Partiers seem to my limited observation to be relatively homogeneously white Christian capitalist patriots. Mike interjected that both groups had been misrepresented by the media, and that seems likely to be so given that mainstream media seems content to misrepresent ’bout anything they report in this country, but Fox news and the rabid right like the Tea Party so much i have to wonder if he’s fallen victim to a personal soft spot.

Mike spoke eloquently enough in his effort to simplify the Constitution, focusing on issues of freedom, and state’s rights. He said very little with which i could find disagreement. He pointed out two major points of confluence between Occupy and the Tea Party–personal liberty, and a rally-cry, “No more Bailouts!” I suspect he fastidiously avoided some points he knew or at least feared might be contentious, like for example the ludicrous assertions i’ve heard often that environmental warnings from the scientific community stem from some kind of Satanic control scheme from the–well just whom is never too clear. The Vatican or something. Commies, i guess. That just maybe the best way for Tea Partiers and Occupiers to interact, though, for now, concentrating on the common aversion to what amounts to Fascism. Interacting from that perspective could exclude much conversation. It could put the Tea Party in the same position as the Occupy movement, after their Fascist sponsors withdraw in horror. Whatever. We Occupiers got on just fine with Tea Party Mike–“Mr. Constitution.”

Mike largely expressed notions we Occupiers could embrace. I suppose he could have done a bit of research and tailored his speech toward that end, but i think we just agree; he seemed a grassroot kind of guy, to me. He briefly alluded to schisms within the Tea Party, and there’s no sensible reason to avoid acknowledging the same within Occupy. Last night’s event was attended by Occupy people that have had such extreme altercations in their attempts to wrestle a semblance of ideological unity from a stubbornly liquid platform that it could easily enough have disintegrated into bedlam. I attended with my dear friend Thomas, with whom i often disagree. In fact, he and i often disagree so strongly that sometimes i feel like smacking him in back of the head. I expect he feels the same way about me at times. Maybe much of the time. Take note, war-mongers of the world: Thomas is a great guy, and even though we disagree with one another, sometimes strongly, neither of us has smacked the other in back of the head. Get it?

So here we were last night, disparate Occupiers engaging a Tea Party mouthpiece in a room full of people that have all experienced the vagaries of human interaction under a fairly pressurized circumstance over the past few months. No butterflies fluttered around the room, but no one worked up a bickering session, either. We worked together. All of us. One could recall the old adage that “The enemy of my enemy is my friend,” but that would be devolution. I prefer to imagine that those with arguments present recognized the futility of scrapping amongst friends, if only below the radar of their Egos. Whether my nobler hopes for those pained souls in the room last night are valid or not, the assertions i made in these non-pages well before Occupy began remain true. The system we wrestle against is collapsing around our heads. And the solution is spiritual, to a far greater extent than it is temporal.

Fat Freddy is a comic book character that lives in Denver. Seriously. I met him a little while ago. (This only seems out of place, i promise.) Mr. Constitution Mike Holler expressed the opinion last night that our American republic, our constitutional federation of states, is in its final throes; that we are in a position where, ” it’s too late to save the country, but too early to start shooting.” Mike seemed tentative in expressing his hope that God might pull some kind of supernatural rabbit from his celestial hat to resolve our monumental national woes. I expect he feared perturbing the often non-Christian sensibilities of the Occupiers. He needn’t have worried quite so much–we may be largely skeptical of literal interpretations, but we’re pretty tolerant of that sort of thing. When i met Fat Freddy–an icon of counter-cultural activism important to me since childhood, an old-school Hippie with connection to the most famous and infamous of that crowd–he singled me out and pulled me aside to explain in some detail his expectation for a spiritual upheaval in coming days. Freddy’s taken up with the Urantia Book, a tome i’ve heard Christians disparage as devilish. I couldn’t see anything devilish about what he showed me. He earnestly explained his expectation for resolution. Soon.

We had come to Denver to talk about foreclosures and bank jiggery-pokery with another guy, and pulled up at Freddy’s house without knowing it. It just happened that way. These old Hippies like Tea Party fave, Ron Paul. (Follow along, now, i know it’s weird, and yeah, i know a lot of Occupiers don’t like Paul; i’m not sure about him myself). Also in attendance at that meeting was a woman i had been conversing with on line for quite a while in the context of Occupy. It took me nearly through the whole meeting to recognize her, because i knew her to live down in the Four Corners neighborhood of Colorado. She lives at Freddy’s now. This juxtaposition is so weird that now i’m expecting the Mad Hatter, or Lewis Carroll himself to pop up at some meeting quoting from Jabberwocky. Mike Holler holds out for resolution to the country’s woes in a traditional Christian context. My own suspicion, shared with J.B.S. Haldane, is that the Universe is not only queerer than we suppose, but queerer than we can suppose. But somewhere in the mix i am convinced that some divine Thing many of us think of as God is deeply interested in the little proceedings here on our little blue marble and that our interactions are subsequently and necessarily thus influenced.

We live right here. We have no choice but to manage things on a coarse, physical level; but we also live, i think, on an overlapping and less tangible plane, where we have more influence than we might ordinarily imagine. At the same time, things seem to occur herethere without our conscious direction. We’ll need to keep plugging away at things like grasping the Constitution, and taking on massive, quixotic quests like fighting banks and a world full of renegade, intransigent governments and power brokers, not to mention our own internal battles, as finely defined as within our own Souls. We’ll need to recognize the Truth in one another, even when it’s obscured by a bunch of worldly disagreement and fog. And so far as i can tell, were learning. Whatever that means.

Reprinted from hipgnosis.

Fear and Loathing in Colorado Springs

Those readers following the Occupy! Movement in its many forms around the world and in Colorado Springs will be glad to hear that Tuesday culminated a difficult week for us here with a resolution of many contentious issues, and an overall commitment to unity.
 
The subject matter behind this particular post is closely associated with the Movement in general, but it’s more a humanity thing than an Occupy thing, overall. I hope i can get the associations to make sense, and that readers will restrain themselves from developing the erroneous notion that this is meant to be a pitch for some sort of religion. It’s not.

I went to the Municipal Court in Colorado Springs to enter a plea of “not guilty” to the charge of camping on public property because of actions executed as a part of Occupy! Actually, i was camping on public property, to put it quite plainly, and the idea behind the plea is that the action does not engender guilt even if it violates a silly and badly unAmerican, (read, “oppressive,” if we’ve become a little unrecognizable in this regard), statute. A couple dozen supporters made it to the courtroom with me, and raised enough ruckus to get Municipal Judge Spottswood W. H. Williams to threaten them all with contempt charges. The whole thing was kind of a lot of fun, really. Made me feel a little like Hoffman or Hayden, in a much smaller sense. There comes a first time for everything, and this was my first visit to a courtroom during which i was able to feel utterly unencumbered by the dark nature of my own action that had led me there. My deepest thanks to all the OCS members and especially Dennis Apuan, who put his political credibility on the line to stand with us, and brought a good deal of patriotic weight to the room as State Rep for the fine soldiers of Fort Carson.

The hearing was only that, after all, and after entering the plea, we scheduled a pre-trial conference with the City Attorney, for 22 Nov, at which a government lawyer will make me an offer i’ll most assuredly refuse and we’ll schedule a jury trial. I’ll keep you news hounds posted as things progress.

The point to this post, though, is an underlying root to the no-camping ordinance, as well as to most of the woes of the day: The Fear.

Most of us don’t acknowledge the Fear because, well, it’s scary. Instead we get angry, or attempt to maneuver ourselves into a position to control uncontrollable factors like society or competitive economies. We eschew cooperation because we’re afraid of our fellows. We make assumptions about others’ behavior and how it will effect us. We bewail the corruption of society, and begin looking over our shoulders for the punishment of God, or black-clad mercenaries coming over the horizon to herd us into frigid winter FEMA camps. We worry about hunger, poverty, inglorious death. We develop elaborate political systems and foment revolution in order to establish “security” of dubious credibility. Look around. These tactics have not ever worked after attempting repeated, redundant permutations, and there is no reasonable expectation that they ever will.

The Fear has driven all this cutthroat competition. It’s what motivates folks to be sure they have more, more, more. It’s what causes us to petulantly demand our right to burn as much gas in our Hummers as possible, and to constantly engage in useless commerce. It motivates the lowest guy competing for some crappy job at Taco Bell just as surely as it motivates conspiratorial Rothschild backroom bankers. It motivates us to enact stupid, oppressive no-camping ordinances when someone that scares us becomes visible, oh my! We’re all deathly afraid of some horrible outcome, like someone else getting our stuff, or scaring tourists away, or enjoying some habitual pleasure we find repugnant.

The Fear is irrational! What’s the very worst that can happen to us in this life? We die? We find ourselves incarcerated or tortured? Consider, if you will, that we live our little spans, maybe a hundred years or so at the outside limit, surrounded at both ends by an unfathomable mass of toroidally twisted, multi-dimentional Eternity that not one of us will ever grasp while we live. What possible fear can be valid under this circumstance other than that we fail to live according to our own perceived Truths? I say “perceived” since only those afflicted by the Fear are afraid to examine those truths for the errors all honest thinkers know to exist within our own perceptions. If I knew my own blind spots they wouldn’t exist, right? We don’t even know what we’re afraid of mostly, though we can usually list a few if we set ourselves to the task. No one is to blame for his or her own irrational fears, especially cultural fears such as seem to be more or less universal. Many have been established by the direct influence of media that may well have been designed by nefarious folk for exactly the purpose of invoking unfounded fears in various populations. OMG! Now i’m making myself afraid! Not really–but what to do about the Fear?

“There is no fear in love; but perfect love casteth out fear,” reads a certain religious text, (1 Jn 4:18, for those with a source fetish like me). I won’t be digressing into a religious sermon here. The principle holds without the doctrinal baggage surrounding it in the context in which it nests. No matter how evil the Ideas we oppose as Occupiers, or as human beings in general, they can’t overwhelm a spirit of love. No matter the spiritual foundation or lack thereof, love can dissipate greed, fear, disappointment, embarrassment, and in fact any of the various bases for the secondary anger response we are all prone to manifesting in situations as apparently dire as the one we’re seeing now. As much as i can plainly see the bogus nature of the moves made in, say, the financial industry, (inseparable from other key industries at a certain level), applying some genuine empathy causes a mental process that can not end in hatred or vengefulness. Look guys like Greenspan or Geitner in the eyes next time you see them. They’re deeply miserable, and completely trapped in their own Fears. When it all collapses, i really hope they’re still available so we can feed them a plate of food, even if we can’t resist the temptation to ask, “What the fuck were you thinking!?”

We can’t fight fire with fire here. Battling greed with more greed, as some seeking to restore an “American Dream” involving bigger slices of a rotten pie seem to do. Revolution only spins us in circles: “Meet the new boss, same as the old boss.” We always seem to find ourselves standing in the same spot we started, except standing in pools of blood with fewer resources after every revolution we’ve ever effected. We don’t have these options any longer. The planet is in a condition that will not permit us to continue on the deeply ingrained, competitive course we’ve followed for so long. Learning to love, to let go, to tolerate, to work together for our futures which are common whether we like it or not is the only way out of this. It’s not easy, only necessary.

I can’t tell anyone how to save anyone else, or how to convince the next guy that any of this is true. I can’t even describe the mental processes that led to these conclusions. All i seem able to do is to proceed in the direction the thoughts lead, as they come to me in a fashion that very often seems external. Examine the assertions that continue to spill out of me at 2 in the morning like this. Notice with joy that there seem to be many others reaching similar conclusions: Things are terminally fucked up and only Love can save us. If it turns out that we’re not saved, that the whole human experiment is doomed to fail, i’ll breathe my last breath in the knowledge that i walked the talk spoken by all my heroes in tongues long lost to history, or new today, or unspoken yet understood by common nature. I don’t think i’m alone. I don’t know how to be afraid of that.

Ye Aulde Memoir

Another old piece. These stories are distorted by romanticized memory, at times, and others likely remember them differently. I by no means intend to insult any of the real persons that lived through this stuff with a cavalier treatment of tender recollections, or harsh description of personalities or actions. Each of us always did exactly what seemed to be exactly the right things to do at the time. And there survives much, much love, which has grown and developed like it always does, in ways we never see coming.

I’m not putting these old ones up because i’m too lazy to write new. I’ll have one of those next–but some of this old stuff fits. Hope you like it.

11 May 2009

One day during the summer of 1980 my brother David was in the hospital at Case Western Reserve University for yet another open-heart surgery. The scene that day was dramatic I suppose, but for our family at the time, it was in many ways just another day. The state of the relationships between us had come to the condition that existed then because each and every incident that had occurred in the history of the Universe had added to that cumulative point. The way it came together then could have been viewed as tragic, I suppose, but we never noticed.

I don’t even remember how I got the news that this particular episode was approaching. David’s surgery that year was one of many—so many, in fact, that by now surgeons and academics had written papers on his congenital condition, and even given it a polysyllabic title. His lead surgeon, a Dr. Ankeny as I recall, had once claimed that he had “learned more from David Bass than fourteen years of medical school.” We four siblings had in effect grown up in the hospital, with the constant potential for death in attendance on a daily basis. Many years would pass between that summer and the moment I decided any of this was applicable to self-reflection, and the sweltering summer afternoon was as present and imminently experiential as any other I lived through during that period.
Our family seemed done that year. I had been out of the picture for over a year. Dad had left soon after, leaving a sour tinge in the air with those remaining, though I never blamed him. When David queued up for one more death-defying, experimental, split-chest open-heart surgery, Dad came back to Cleveland from Florida to put in an obligatory appearance.

Here was a meeting that defied conventional description. Dave, the least guilty of all our immediate family, had been deeply affected by Dad’s exit from the filial stage earlier that year. I hadn’t seen, or even spoken to Dad for well over a year, nor could our interactions prior to then be described as warm and supportive. Outnumbered by angry or indifferent family members, and perhaps less acclimated to hospitals as the rest of us, Dad was way out of his simpler, down-to-earth element.

I showed up unannounced, with glorious southern tart Candy Stone from Mobile, Alabama in tow, she in dirty bare feet, nearly illegal shorts, one of those dangerous eighties tube-tops, and very red eyes. I don’t think Dad spoke more than a half dozen words to me. His eyes told the whole story of uncertainty, pain, and failure. Dave, fresh from surgery, quite literally green, with a repulsive grey crust around his lips and appending to the tubes and what not projecting from several of his orifices, refused to see Dad. Refused to allow him in the room. Dad left unrequited to return to his exile in Florida. I didn’t see him again for many years.

Once, David, following the Dead tour in our Mom’s old family van showing all the effects of the Rust Belt, with his underage Russian girlfriend, his fiddle, and a patchouli oil manufacturing operation, got pulled over in Alabama, for sport. By this time, David was unkempt, smelly, and obviously committing some crime or another. The cops shook him down pretty good, but of course he had no contraband. He has a vice or two, but the heart thing keeps him from excess. He had that young Russian girlfriend, though, and Alabama’s finest figured they could really hang him out to dry, (dang hippie). But she and Dave convince the alpha cop to let them call her mom in New York to confirm that permission had been granted for the road trip and no heinous kidnapping was going on. The mother spoke zero English, but somehow the girlfriend convinced the cop to allow her to translate for her mother. Mother and daughter held a five minute conversation about the mental acuity of Alabama cops, duly translated as an expression of permission, and the travelers were on their way. David drawls this story on stage in his hillbilly persona, fiddle in hand. It’s hilarious.

It seemed to me for a long time that David was the only one of us to escape that little bubble of anti-reality that made up our family life while we siblings were young. Maybe he somehow managed to avoid being trapped in it in the first place, residing only temporarily, with some sort of metaphysical pass associated with potential imminent death. I don’t know, but years later, during one of the high points of my own endeavor, Renaissance Paint and Remodeling, I remember feeling jealous of David. This was a recurring sentiment, and all the more abberant for the fact that my strongest memory of it falls during a visit to Dave’s place in North Carolina that amounted to a just-in-case kind of deal before a heart transplant. Whatever the rationality or fairness of my little envy, (not real envy, mind you, but one of those little personality spikes that one notes and passes through), David is the one of us that got away the least damaged, and has lived his idiosyncratic dream out in full, down to the fine print, with joy.

Mom tells a story about my first day at school. Or maybe the second. I had asked some question that Miss Gardner couldn’t answer, and after day two, came home grousing about how those people were ignorant, and furthermore lazy, since no one had even bothered to look up a response. Mom likes to carry on about how smart her offspring are. She doesn’t usually bring up in public how warped we can be.

Mom, we brothers agree, bequeathed us a legacy of somewhat dubious mental processes. She’s nuts. We all know it. She knows it. Dad knows it. The rest of her family knows it well, and most of them recognize a common bond of familial, brand-name insanity that we all seem to share. I expect this is a more or less common thing among families, but I remain convinced that we are a bit stranger than most, at least in part because of the unique circumstances we lived through.

Back in the day, Mom’s thing was what they call control issues. The dynamic of her issues was so complex I can’t imagine I’ll ever figure it out. Some of her personality came to her by heredity from her mother, whom we call Mo. Much of it developed in that crucible of stress Dave kept heated by his repeated, continuous flirtation with death. Mom, responding to my over-the-top reaction to a pubescent hormonal tsunami, became madly obsessive with minutiae, dividing her time among us brothers and badgering us constantly in a fashion no one can really get unless they have their own experience to compare. I think she and I trapped ourselves in a sort of feedback loop that could have ended no other way.

I was out of the house for good, by the age of fifteen, for all purposes off to lead a life of crime, I suppose. For some years, I lived out my interpretation of the old Kerouac/Kesey/Abbie Hoffman mythos, on the road, in the street, an utterly directionless rebel. A good five or six years passed without more that a word or two passing between Mom and me.

I was nineteen when I came to Colorado Springs. The vague and unformulated manifesto for global revolution I had worked out in my head was on hold, kept in place by a twelve-pack of cheap beer. I had a job as an electrician, and didn’t see any reason to change that, but we actually didn’t do much of anything but work and drink beer that year.

One day Mom called to say Mike, another brother, got himself in trouble again and she expected him to “run away.” I told her to give him my number and I’d let her know when he called. He did just a few days later, and can I come pick him up over on south Circle.

Mike and I spent a couple years engaging in the sort of insanity to which we had become habituated in Cleveland. The reader will require imagination to add flesh to the story here. The statute of limitations may prevent backlash, but I don’t mean to poke at a bees’ nest, and it seems unlikely you might imagine anything more extreme than what actually took place. We weren’t stupid, though, and the business of working for wages, or relying on illicit behavior for advancement just wasn’t good enough, so we formed a construction company and went to work. That proved to be a trap. Maybe an extension of the weird, family trap that all of us have discussed so deeply, without resolution.

Mike and I had it in our minds that the working man’s habit of grousing over how management acts is crap and that if we were going to grouse, we ought to just take the reins ourselves. It turned out we were pretty good, too, in a lot of ways. We worked together for the best part of twenty years, and reached moments of national prominence in our little niche. The whole period was characterized by more bone-crushing stress and absurd, super-human feats. We had little breaks from the madness when we’d crash the business, which we did three times. We were great at getting shit done, but lousy at administration in the final analysis.

Hiring employees in the construction business kept me exposed to the street element to which I had become accustomed. I involved myself in various efforts to assist folks in their low-budget struggles, imagining still that I could somehow change the world. In fact, contrary to Mike’s primary obsession with business success, I figured the whole pursuit as a means to some vague end involving social revolution. For a while a religious experience had me involved with a church effort to “reach out” to the hoodlums that used to cruise Nevada Avenue on Friday and Saturday nights. I even managed to glean an ordination from the Baptists, though now I suspect they’d regret bequeathing me with it. My identification with street folks and the urge to help them rise above conditions has never left me. Actually I’ve worked up the notion that we could all stand to rise above conditions.

Dad. I went even longer without speaking with him than I did with Mom. He dealt with our family’s teen-aged fulguration by folding his hand and striking out on his own. Offered a transfer by his employer, the story goes, he told Mom, “I’d like you to come to Florida with me, but I don’t think I can love you anymore.” No woman in her right mind would go for that deal, and Mom didn’t fall for it either. Dad packed his company car and struck out, leaving his all-important nest egg, and everything else, behind. When David was in the hospital again that summer, that’s where Dad came from to visit him.

I had been away, and I don’t recall blaming Dad for his poor dealings with the family. He had been raised in a very old-school, European style, and he simply couldn’t handle our ways. To this day, in spite of Dad’s expression of a taste for “philosophy,” our conversations are often guarded, pregnant with unspoken truths. I still don’t know his philosophy.

Last summer Dad, my youngest brother, and I went to Montana to camp and fish, riding an outfitter’s horses into some of the most pristine wilderness left in the lower forty-eight. I had genuinely hoped to break the communication barrier that stands between us, but we had to settle for hugs and meaningful silences, for the most part. Dad still plays with his cards pressed tightly to his chest, flashing a look of panic if the conversational waters begin to threaten him with submersion. I guess he can’t swim.

Dad’s experience, it seems to me has also been different from the norm, though I’m uncertain that any human being matches that mythical standard. His family, unlike Mom’s, which fought in the Revolution, was barely American. They were proud American citizens, but their traditions came from old Europe, and they still lived communally on the old Bass farm as they had done for a thousand years.

During my childhood, whenever David was out of the hospital, we’d spend weekends at the farm with the scene looking very much like something from an era that had long since passed in this country, all Dad’s siblings and extended family eating together, playing cards, children roaming the grounds like Huck Finn. It was all rather idyllic, truly, and the moment Grandma Bass died and the farm disappeared under a layer of vulgar office towers marked the shift from one childhood to another.

Dad’s life since then became an effort to recreate those years. His brother and sister had never left the farm. Even when his brother Paul married and had a child, he stayed there on Rockside, as the place was known. I think that scene served as an anchor for my Dad, and when he retired, impressively early despite having suffered huge financial setbacks, he bought his own farm, secluded and sylvan, and moved his socially inept brother and sister in with him.

Paul was a very strange dude. Throughout his lifetime he suffered from some sort of condition that caused him to wobble quite a bit and to mumble when he spoke, like a cartoon character. I still have no idea what the actual condition was–it was never discussed in medical terms, and Paul worked, loved, laughed, and lived in a fashion perfectly suited to him. He represented another unusual facet of our lives that never seemed unusual to us, simply because it just had always been what it was. During his declining years, Paul became more and more difficult to live with, his condition developing into a matter that caused him to actually require care, rather than merely one engendering bemusement. He became cantankerous, incontinent, and dangerous to himself, given his refusal to use a cane. Dad actively cared for him, there on the new farm, forty-five minutes from a paved road, until he died a few years ago.

I couldn’t make the funeral, but I spoke to Dad on the phone as he was back in the city making arrangements. I told him I thought his dealings with Paul were among the most impressive and moving things I had ever seen. I still see it that way. The conversation, which lasted no more than ten minutes I guess, may have been the deepest we’ve ever shared.

For the past eight or nine years every Sunday, so long as I’m in town, I give away food we cook up to whomever we can get to come up to the Colorado College campus and sample our fare. Often our guests are homeless or dirt poor, but we’re not so much stipulating low economic clout as a qualifier. We’ll feed anyone. Dick Celeste, the former governor of my home state, Ohio, and once ambassador to India, comes now and then. He’s a friend, and I visit him at his home, during party season at CC. Arlo Guthrie came down to our basement kitchen once–I put him to work washing dishes. Many of the crowd I see every week are chronic though, plagued by demons I surmise to have been born in conditions similar to mine as a youth. I’ve occasionally contemplated the accusation of “enabling” bad behavior that people toss my way once in a while, but many of our regulars, some of whom I’ve known for twenty-five years, are simply never going to approach any sort of productivity. They are simply too extraordinarily damaged, and as the proverb goes, there, but for the grace of God, go I.

The Christian experience I mentioned earlier was a reflection, or maybe an extension, of spiritual drives I always apprehended. I pursued it heartily for a time, beginning my adult involvement with the sort of hands-on charity our Sunday kitchen represents in a Christian context. The Church always felt skewed to me though, and a couple years’ studying of the questions involved convinced me to adopt thinking anathema to most of my Christian friends. The exclusionary thinking shared by many church folk, in turn, began to seem anathema to me.

Something about my family and its ability to weather long, rending forces, becoming over time a stronger entity for all its roiling turbulence, seems to me akin to the aspect of the human condition that produces the wrecked lives that bring folks to visit me on Sunday afternoons. Further spiritual thinking–some would say metaphysical thinking–concerning Chaos and Oneness has encouraged me to feel like the separation between me and the crowd I serve is illusory in some indefinable fashion. When members of our family passed through periods during which we found it necessary to step back from one another, the bonds that hold us together never broke, and the etheric bonds between my soup kitchen crowd and me, and ambassadors or presidents, don’t seem breakable either. We all seem to share certain common struggles, differences arising simply from disparate approaches, variant perspectives. Our family, it turns out was never what we imagined it ought to be, but perhaps something greater, and more viable, after all.

Part of my mission in ditching the construction business for more cerebral and perhaps less lucrative pursuits at an age when many of my peers in the building industry are thinking of golf courses and retirement comes from a belief that the differences in individuals are reconcilable. Feeding people is necessary, but falls short of bridging the apparent expanse between souls. I still want to change the world, even though I understand the futility of such a grandiose notion. Utopians always fail. But I expect that each time some failure becomes apparent, we can learn a little something, and maybe the next day we can fail a little better.

No account of self-examination is ever going to be complete. I won’t be asserting anything about how I’ve come full circle. Our family will never return to the conditions of my childhood. Nor is the new generation my brothers and cousins and I have brought into the world a retread of old lives. I haven’t even touched on my own experiences as head of a new family, but my children live lives vastly different from their forbears, and even though I rather hope they can avoid some of my mistakes, I suspect they’ll be making many of their own. It seems to be in their genes to require hard lessons. But, like my tortured friends in line at CC on Sunday mornings, or those in my circle equally tortured but accustomed to fine linens, whatever they may suffer holds its own value.

We all learn what we must learn. Life is perfectly safe. Its lessons are self-taught, but deep. I genuinely plan to write a real memoir and a family history, for my kids’ sake, but by the time we come full circle, it’s too late to write about it.

Your father’s Lili Marlene, specifically

On the subject of historical misconceptions, you might say I’m hugely sentimental. So the tale of Lili Marlene catches me up like a honey trap. What does the name conjure for you? A Nazi Mata Hari? A fictional musical persona beloved by soldiers on both sides of the Good War? While even antiwar sentiments wax nostalgic about its universal love-conquers-all popularity, the WWII melody evokes romantic memories fueled by dueling propagandas. And when a victorious meme writes the history, it can erase its footprints, leading from what was effectively a literary rape.

A recent folk reference for example, an otherwise impeccably adroit Lili Marlene Walks Away, about Marlene the streetwalker, leaves me just sick in the heart.

The historical narrative has it that Lili Marlene was actually Lili and Marleen, two girlfriends for whom German soldier Hans Liep pined from the trenches of WWI. With unchivalrous poetic license Liep conflated the two and penned a love poem as it might have been written to him, “signed, Lili Marleen.” Two decades later a German composer set the words to music and then came the outbreak of the next war. The original recording by Lale Anderson was a flop until broadcasts to the front lines over Radio Belgrade captivated homesick Wehrmacht soldiers and eventually the lovelorn battling on both sides. Lili Marlene emerged the most popular song of all time, translated in as many languages as fought in the war. Was this owed to a universal empathy toward the pangs of love, or was it the appeal of a truly catchy melody and lyrics carefully crafted to suit the moment? And how did Lili’s character become redefined?

For the German audience, the character of Lili Marlene did not change. For some the song lost its sheen for having been co-opted by the Third Reich war machine. But even as the singer’s living embodiment of “Lili Marleen” became tarnished by her Faustian-won fame, the title role of “Lili” remained the non-fictional love interest with whom her soldier lover spent every furtive off-duty moment, revisited in memory and in anticipation. Concurrent translations across the European continent stuck to the same essential theme, owing no doubt to listeners being in the main multilingual. They understood enough of the original German not to be sold another Lili Marlene. English was another story, but the Allies didn’t start it.

Nazi propaganda minister Joseph Goebbels at first banned the song because he saw it as demoralizing to soldiers enduring the deprivations of war. He referred to Lili Marlene as “The tearjerker with the death-dance smell” until its popularity reached a critical mass even he couldn’t stop. When opposing forces seemed also to succumb to the song’s wiles, Goebbels sought to intensify the poison’s venom.

The original German lyric was written in an ambiguous voice, either that of the soldier or his faithful girl, revisiting their every last moment together and the promise of more. Even as the imagery may have been accepted as a soldier’s fantasies, the singer’s female gender was consistent with the voice of his lover’s reassurances. As a result, the original singer came to personify the character Lili Marleen. For soldiers of every side the voice they heard was that of “Lili Marlene.”

The popular account goes that when Allied soldiers were observed singing along to Radio Belgrade, an English lyric was ordered post haste lest American GIs and British Tommies be singing in German. Rarely mentioned is that the seduction interrupted had been in English.

A recent compilation of nearly 200 different renditions of Lili Marlene gives an unprecedented look into the WWII propaganda battle waged over control of the Lili Marlene narrative. Many of the key recordings have reached Youtube.

When the Germans surmised that Allied soldiers wanted to do more than whistle along, a lyric was devised for them which changed the ambiguity of the narrator to the first person. YOUR Lili Marleen became MY Lili Marlene. And oddly, but for reasons un-mysterious obviously, the vocalist remained a woman. The English version was supposed to be a translation after all, and no one was under any illusion that the song’s original appeal with soldiers was not owed to the enchantment of the chanteuse.

The plodding, dripping sentimentality of the melody also lent well to marches. Lili Marleen, in English, Marlene, was an ideal tonic for a war long on effort and deprivation.

An American GI today could still be forgiven for hearing Lili Marlene and saying: those aren’t the lyrics I remember. Late and post war USO tours effaced the earlier Nazi radio broadcasts. There was a German English version before the British and American after that, when Lili of the home front became the seductress became the whore.

If the song conjures an American image at all, it’s Marlene Dietrich, who subsequently claimed the song for her own, perhaps why it’s named Marlene and not Marleen, I don’t know. But her vampy rendition colors interpretations to this day. An American film star from the 30s, Dietrich is still mistakenly remembered as a reformed German double agent, possibly the Axis Sally propagandist who originated her namesake song. To my mind, familiarity would be the only reason to favor Dietrich’s rendition of Lili Marlene. The original 1938 German and its first English incarnation in 1942 were both by Lale Andersen, easily the most moving. But Marlene Dietrich wasn’t selling love, or was, to be more precise.

The lyric to the original German recording translates thus:

In front of the barracks, in front of the main gate,
Stood a lamppost, if it stands there still,
So will we see each other there again,
By the lamppost we’ll stand,
As before, Lili Marleen. As before, Lili Marleen.

Our two shadows looked like one.
That we were so much in love, at a glance anyone could see.
And everyone will see it,
When we stand by the lamppost,
As before, Lili Marleen. As before, Lili Marleen.

(The motif of female narrator was conceded by a 1943 BBC propaganda rerecording made for broadcast back to Germany. Instead of a love song, the lyric became a war-weary rant where a hoarse-throated middle-aged “Lili” calls for an uprising against Hitler. Loosely translated it went:

Maybe you’ll die in Russia, maybe you’ll die in Africa,
You will die somewhere, that’s what your Führer wants.
But if you see us again, where will this lamppost be?
In another Germany.
Your Lili Marleen.

The Führer is a oppressor, that’s what we all see,
Making every child an orphan, every woman a widow,
It’s all his fault, I want to see? him at the lamppost,
Hang him up at the lamppost.
Your Lili Marleen.

)

The German propagandists were more insidious with their subversion of Andersen’s 1942 recording, sticking closely to the original setting, shifting the narrator squarely to the male, relegating Lili not just to the third person but to the past, and interjecting heaping doses of sentimentality:

Underneath the lantern, by the barrack gate,
There I met Marleen every night at eight.
That was a time in early Spring,
When birds all sing, then love was king
Of my heart and Marleen’s, of my heart and Marleen’s.

The next verse begins with a cringe-worthy overstep of a military put-down, perhaps however to divert critical faculties from the real manipulation. Even though the song is now in English, the soldiers expect it serves German propaganda. Disarmed by the amateurish mocking of “retreat,” the listener is vulnerable as the rest of the lyric preys on a soldier’s insecurity about his sweetheart’s fidelity, the longer the war years become interminable. The subject is the usual propaganda leaflet fare, but animated with the potency of music. Faithful “as before” became “time would part” Marlene.

Waiting for the drumbeat, signaling retreat,
Walking in the shadows, where all lovers meet.
Yes those were days of long ago,
I loved her so, I couldn’t know
That time would part Marleen, that time would part Marleen.

The pace leadens to deliver the fatal pronouncement, again the anticipation of reunion becomes perseveration and lament:

When I heard the bugle, calling me away,
By the gate I kissed her, kissed her tears away.
And by the flick’ring lantern’s light,
I held her tight, t’was our last night,
My last night with Marleen, my last night with Marleen.

The last verse repeats the first, which I omitted earlier. It’s a call to action, obviously absent the original, “Now is the time-” meaning desertion into the aforementioned shadows, “to meet your-” and I must admit to be unsure of a transcription. From Andersen’s accent to the unclear recording quality of her backup chorus, it’s difficult to determine whom Lili wants the soldier to meet. “Your girl” and two other words which rhyme with girl, the first begins with P, the last with S.

Still I hear the bugle, hear its silv’ry call,
Carried by the night air, telling one and all:
Now is the time to meet your pearl,
To meet your girl, to meet your soul,
As once I met Marleen, my sweet Lili Marleen.

Your girl, not Lili Marleen. She’s gone, a love lost to regret. In their German-accented affected English, the male chorus appeared to provide a mocking echo “Now is the time to meet your death.”

Needless to say it was imperative that while Radio Belgrade reached the English and American soldiers in North Africa and Italy, the Allies had to record an antidote. A first version by a Brit kept with the romantic original:

In the dark of evening, where you stand and wait,
Hangs a lantern gleaming by the barrack gate.
We’ll meet again by lantern shine
As we did once upon a time.
We two Lili Marlene, we two Lili Marlene.

Our shadows once stood facing, a tall one and a small.
They mingled in embracing, upon the lighted wall.
And passers by could see and tell
Who kissed my shadow there so well:
My girl Lili Marlene, my girl Lili Marlene.

But that didn’t address the problem of demoralization, Goebbels’ original concern shared by military commanders no matter which side: soldiers overtaken by depression.

Plus the Allies needed less a song about the girl back home than one about the German lass awaiting the Yankee conqueror. Who are we kidding? Lili Marlene’s German voice did not invoke thoughts of home so much as a foreign woman taunting, however innocent, from behind enemy lines. Eventually those lands would be overrun, her lover to die in their defense, Lili to await the last man standing. How many soldiers listened to Radio Belgrade and did not fantasize about cuckolding their adversary with his beloved Lili Marlene? The Allied troops needed a Lili of not-unfaithful character, but one available to them. It was no big leap for an American lyricist to transform Fritz’s Lili, faithfully waiting for him under the lamppost, to “Lili of the Lamplight,” the only type of German woman with whom American GIs would be able to get near, a prostitute.

Underneath the lantern by the barrack gate,
Darling I remember the way you used to wait.
Twas there that you whispered tenderly
That you loved me, you’d always be
My Lili of the lamplight, my own Lili Marlene.

You’ll always be mine? My love? No, my lover by the lamplight. In the new scheme, the mentions of love and tears become sublimated by kisses, caresses, whispers of tender nothings and feet waiting in the street. Sung to the Allied troops as they marched unto Berlin by a husky voiced vamp. That’s your Lili Marlene.

Nominate Julian Assange for a Nobel? Time Person of the Year? No, jail him.

I Am Just Sick. Julian Assange arrested, denied bail, confined to a UK jail cell deemed unsuitable for Bush, Blair or their murderous peers. Britain even assured Israel that its war criminals could visit England without fear of politically motivated arrest warrants. So much for the Assange-is-Mossad rumor. Arrested for what? Publishing evidence of governments conspiring against their peoples’ interests, in their own words? Really, what’s next for our pretense of Democracy?

No, it was accusations of sexual impropriety, technically. Rape and molestation being the corporate media’s chosen translation of how Swedes might describe a consensual sexual encounter gone off, according to post-coital television interviewees, turned insufficiently feminist-sensitive. Do I sound flippant? Two women in Sweden, described as groupies, of activist pedigree it’s alleged, one elder cementing the resolve of the younger, shall we call them Lewinsky and Tripp, accusing Assange of disrespecting their gender.

They play right into the stereotype I have of single-issue advocates who can’t get past affronts to their own personal agendas. Whatever Assange’s transgressions, is not the fate of the western world, the awakening of its public participants in the balance? Though Swedish authorities originally dismissed the accusations, the pair is determined to interrupt Wikileaks’ Cablegate to school Assange in his bedside manner?

Whether instigated by intelligence operatives or not, the charges made by the two women have been the only hooks which authorities have been able to get into Assange. Will extradition to Sweden to answer police inquiries lead to US rendition to a secret facility? Should we hope that at the very least the Brits resist US pressure to interrogate Assange, or affect the operation of Wikileaks by coercion and duress?

We must hope the Assange’s colleagues can secure Wikileaks before their sysadmin is tortured for his access codes.

Hearing the New York Times assail the character of Julian Assange as having delusions of grandeur, I’m reminded of how a centuries earlier ruling class rid themselves of the populist scourge Napoleon. Defeated once, Napoleon was able to escape banishment and had but to set foot on French soil and with only the force of his personality he was able to reconstitute his campaign to free the European citizenry of their despotic monarchs. Defeated again, Napoleon was too popular to execute and so was banished again. This time, it’s alleged, a heroic loyalist submitted to be contaminated with syphilis and thence to infect and ground the upstart Napoleon for good.

The remaining Wikileaks crew is at greater risk than Julian Assange, lacking his media visibility, they could be disappeared without fanfare. But that’s evidently a fading misconception of mine. Assange’s high profile hasn’t helped him.

Opportunities for September, updated

SEPTEMBER
12- Day of Solidarity with the People of Zimbabwe
15- GLOBAL VOTE international plebiscite
16- Dave Rovics concert, CC Slocum Commons, 7pm
16-19 A.N.S.W.E.R. Days of Action in Solidarity with BRADLEY MANNING
17- Gender And Liberation demonstration against unsolved crimes against women of West Mesa, NM. At UCCS Upper Plaza, 1:30pm
17- Jim Hightower lecture, The People Are Revolting, CC Cornerstone, 4:45pm
17- Rally: HANDS OFF MY SOCIAL SECURITY, Centennial Hall, 6:30pm
20- David Barsamian, “War & Peace in Central Asia: Thinking Globally, Acting Locally,” CC Slocum Commons, 7:30pm
21- UN International Day of Peace, sponsors PTP, UF & CPI
22- World CAR FREE Day, bike or walk to work
23- Day of Solidarity with the People of Puerto Rico
23- Emma Goldman biographer, Candace Falk, lecture, Packard Hall, 3:30pm
25- Banned Book Week

Ward Churchill to speak for O’odham

O'odham rightsAccording to Censored News, Activist and scholar Ward Churchill will speak at the Unitarian Universalist Church of Tucson, 4831 W. 22nd St., on November 13, 2009 at 7:00 p.m. to benefit O’odham VOICE Against the Wall, which since 2003 has organized and advocated for the traditional O’odham leaders and elders of the Tohono O’odham communities in the southern territory of the United States and northern territory of Mexico. Professor Churchill’s talk is part of the “Apartheid in America: Surviving Occupation in O’odham Lands”

O’odham activist Ofelia Rivas will also participate. The event is sponsored by the Dry River Radical Resource Center, the Earth First! Journal, and Voices against the Wall.

Here’s some background on the O’odham struggle:

pamphlet cover illustrationBy J. D. Hendricks, 2004
TIAMAT PUBLICATIONS #5

The People Who Emerged From the Earth

Over two thousand years ago the descendents of the O’odham moved into the southwestern region of the area now claimed by the U.S. as the state of Arizona. 1 The O’odham have had one of the longest histories of contact with the forces of European colonization compared with the rest of the native North American peoples. The O’odham’s first contact with Spanish invaders took place in the mid 16th century; nearly one hundred years before the colonization of the North Atlantic coast and Great Lakes regions were begun by the French and English colonists. As such, the history of the O’odham provides a good context for an investigation of the colonization of Native North America, and more specifically, an investigation of the interplay between, and results of, the varied responses to colonization – that of collaboration, accommodation, and resistance.

Many histories of the O’odham refer to these desert people as the Papago. The term Papago was a name given to the O’odham by the Spanish colonizers, and is likely the result of a Spanish corruption of the O’odham word “papabi” which was the O’odham name for one of their principal bean varieties. Thus, the Spanish colonizers term for the O’odham (Papago) came to mean “the bean eaters.” 2 For the purposes of this study I will refrain from the use of the term Papago and will refer to “the people” 3 by their traditional pre-colonial name. 4

As is often the case, with the name Papago being a good example, European constructs are often imposed upon indigenous peoples by the historians that seek to portray their past. This result can occur when historians seek to glorify European norms and traditions at the expense of indigenous ones, and can also be the result of the subconscious indoctrination of the historian by the dominant culture – in this case that of western style industrial civilization. In other cases it can be the result of a simple uncritical usage of language.

One of the most dominant and reoccurring “civilized” constructs imposed upon indigenous peoples history is the commonly understood notion that the O’odham, or any other indigenous North American culture for that matter, existed as a totality or uniformed mass. This study will seek to use the history of the interaction between the O’odham peoples and the United States, both its government and its peoples, to deconstruct this myth of the totality and provide a history of the O’odham’s varied responses to colonization from an anti-colonial and anti-industrial perspective. By investigating various important case studies in O’odham history, and looking not only at resistance but also accommodation and collaboration, it is hoped that this work will help to provide a more realistic historical picture of the effects of colonization, and the intentions and reactions of both the colonizer and the colonized. Within the previously stated context and theoretical framework, this study will argue that while the O’odham responded to the U.S. invasion of their lands in various ways, the choices to resist, accommodate, or collaborate with the forces of colonization did not affect the overall U.S. policy concerning the O’odham – that policy being the eventual total assimilation of the O’odham into the dominant “civilized” industrial system. 5

This investigation will include a strong focus on O’odham resistance to colonization, as any anti-colonial history should, however it will not discount or ignore the many historical occurrences of accommodation, and in some cases outright collaboration, with the colonizers. It is important to always keep in mind that none of the actions and reactions in any of the case studies looked at are attributable to the O’odham as a “totality,” but rather are attributable only to the various groupings of O’odham, be they incarnated in the form of the individual, the clan, the village, an economic or spiritual grouping, or an established political organization.

A God of Civilization and Coercion Comes to the O’odham

The O’odham’s first encounter with Spanish invaders took place in the mid sixteenth century when a group of conquistadors led by Alvaro Nunez Cabeza de Vaca entered O’odham territory in search of gold. These men did not find the riches they were looking for and left the desert region to return to the Spanish colony. However, soon after word spread of the O’odham villages on the northern periphery of the Spanish colony, missionaries began to travel north to bring God and “civilization” to the native people residing there. By 1686, Catholic missionaries had formed a few small missions in O’odham territory using what they believed to be the influence of their soft power 6 techniques to lure the O’odham into their missions where they were then subjected to a rigorous schedule of cultural indoctrination. Most O’odham historians, including Winston Erickson, 7 and to a lesser extent, Bernard Fontana 8 have, during this time period, focused on the O’odham who chose to reside nearby and within these early missions, thus painting a picture of the O’odham as accepting of Spanish influence and cultural indoctrination.

However a closer look at this time period reveals that mission O’odham were only a small percentage of the total population of O’odham residing in the Sonoran desert 9 and that the ones who were there may not have been so for the reasons that the colonizers believed. San Xavier del Bac, the largest mission in O’odham lands, as well as many other missions, took advantage of the fact that the desert O’odham migrated in the dry winter months to the Northern Piman settlements along the rivers to work the small farm plots for sustenance. 10 The Catholic missions inserted themselves into this traditional pattern. Those O’odham who worked and lived near the missions were, for the most part, seasonal residents, which shows that the missions were viewed merely as being of utilitarian value. Thus, the O’odham as a totality were not necessarily accommodating to or interested in anything the missionaries had to offer per se, and when the missionaries began to employ “hard power” techniques and abuse or overstep the grounds for their welcome it did not go without consequence. 11

Accommodating and ignoring the missionaries was not the only response to colonization practiced by the O’odham during the seventeenth and eighteenth centuries. Although historians such as Erickson feel that “the missions did serve the O’odham well….,” 12 that assertion is contradicted by the fact that there were many large scale rebellions waged against the missions from outside and from within. In 1695, 1751, 1756, and 1776, large scale rebellions occurred in which missionaries were killed and their missions burned to the ground. 13 In some cases these rebellions were the doing of joint O’odham/Apache alliances, which is significant considering that many histories of the O’odham and Apache portray them as immemorial enemies. This may be the result of the fact that by the early nineteenth century the Spanish government initiated a campaign of divide and conquer that was continued later by the Mexican and U.S. governments to turn the O’odham and Apache against one another, thus easing the project of their subjugation.

A Change in the Occupation Government: Washington Enters O’odham Lands

In 1821, Mexican Independence from Spain was achieved and interest in the O’odham dropped away nearly entirely. By 1828, the new and secular Mexican government began the process of shutting down the missions in O’odham territory and by 1842, the last of the missions were closed. Soon after, in 1846, the United Stated initiated a war for territorial expansion against Mexico. This war was not of immediate consequence to the O’odham peoples. Isolated in desert regions, the fighting between the two occupation powers affected them little in the short run. However, the signing of the Treaty of Guadalupe Hidalgo in 1848, which ended the war, would lay the foundations for a series of disastrous events which would affect the O’odham in very negative ways.

Of greatest consequence to the O’odham was the fact that the boundary between the United States and Mexico was not finalized by the treaty of Guadalupe Hidalgo. The boundary was designated by Article Five of the Treaty as being an arbitrary line roughly following the 32nd parallel, an area which runs through the southern part of modern Arizona. To the east, the border was provided by the Rio Grande. The exact boundary line along the 32nd parallel was to be decided at a later date. It is also important to note here that the Treaty also provided that all Mexican citizens absorbed by the United States were to be granted U.S. citizenship, which included all indigenous peoples in the annexed territory since under Mexican law they were considered citizens. In the treaty the United States also assumed the responsibility for preventing cross border raiding into Mexico by the southwestern tribes, specifically the Apache. 14

In the aftermath of the signing of the treaty of Guadalupe Hidalgo, it became quickly apparent that an acceptable border between Mexico and the United States along the 32nd parallel would not be achieved. An official survey expedition was assembled by the United States and Mexico in 1849 to trace out the boundary between the two countries with little success. Various borderlines were agreed to and then abandoned and re-made by the United States, sometimes in a unilateral decision that dismissed the positions of the Mexican government altogether. 15

The principal concern for the United States was to secure title to an area of land in northern Sonora, Mexico that was ideally suited for the construction of a portion of the southern continental railroad whose building was being discussed in the U.S. Congress at the time. One of the main advocates for this southern railroad route was a South Carolina man by the name of Colonel James Gadsden. Gadsden’s history of connections to powerful business, military, and political leaders is very interesting and his appointment by the United States to be Minister to Mexico in 1853 serves as a very informative source to gauge the United States’ intentions towards Native Americans and the O’odham in particular.

James Gadsden was born into an influential southern family and graduated from Yale University. After enlisting and serving in the war of 1812, Gadsden was sent to the Florida territory with Andrew Jackson to aid in the campaign of removal and extermination being waged against the Seminole Indians, which took place from 1816-1818. After this war against the Seminole, Gadsden was appointed by President Monroe as commissioner to oversee the removal of the Seminole Indians to Indian Territory. Like the more famous removal of the Cherokee, the removal of the Seminole, and the high death rate suffered as a result, unarguably constituted genocide. 16 As a reward for a job well done, Gadsden was appointed by Monroe to a seat on the legislative council of the territory of Florida, thus beginning Gadsden’s political career. In 1840, Gadsden was elected President of the Louisville, Charleston, and Cincinnati Railroad. In 1853, the Secretary of War, an ardent white supremacist and slavery defender by the name of Jefferson Davis, appointed Gadsden to be Minister to Mexico. 17 As Minister to Mexico, one of Gadsden’s primary missions was to negotiate a final demarcation of the boundary between the U.S. and Mexico. Although Gadsden was a zealous believer in Manifest Destiny, his ideas concerning racial Anglo-Saxonism 18 caused him to be an opponent of the total annexation of Mexico. Gadsden, like many racist U.S. politicians of that time, felt that the total absorption of Mexico and its non-Anglo population into the United States would pollute the Anglo bloodline too much and thus he sought only to gain enough territory for the United States to build the southern pacific route. 19 Thus, a man who had presided over a war of genocide against the Seminole Indians, was a devout racist, and who had obvious conflicts of interest due to his connections to the railroads, was put into a position to determine the territorial boundary between the United States and Mexico and in the process also determine the boundaries of the O’odham’s land. With its appointment of Gadsden, the intent of the U.S. government could not be clearer. Business interests and territorial expansion were to run roughshod, by any means necessary, over any native peoples who stood in the way.

It is no surprise that when James Gadsden finally successfully negotiated a treaty with Santa Anna to secure what is now the southern portion of Arizona, the O’odham were not consulted. In fact, the Gadsden Treaty, signed into law in 1853, did not contain any mention of the O’odham at all. Considering that the new boundary line put in place by the Gadsden Treaty literally split the traditional O’odham lands in two, it is obvious that the intentions of the United States were in no way benevolent. Here it is also important to point out that the terms of the Gadsden Treaty specifically included the same citizenship provisions which were spelled out in the earlier Treaty of Guadalupe Hidalgo. 20 Although the Gadsden treaty was of great significance for the O’odham, their isolation and the outbreak of the Civil War enabled them to live another decade in relative isolation from Anglo encroachment.

Assimilation, Cultural Destruction, Double Speak and Ordained Genocide

The causes which the Almighty originates, when in their appointed time he wills that one race of men – as in races of lower animals – shall disappear off the face of the earth and give place to another race, and so on, in the great cycle traced out by Himself, which may be seen, but has reasons too deep to be fathomed by us. The races of the mammoths and mastodons, and the great sloths, came and passed away: The red man of America is passing away!
–United States Congress Committee on Indian Affairs report, 1865. 21

No doubt with similar justifications in mind as those of the Committee on Indian Affairs, Anglo settlers began their invasion of O’odham lands less than a year after the conclusion of the Civil War. The Homestead Act had opened up the lands of Southern Arizona to Anglo squatters and in 1866, one of the first of many bills was passed by Congress granting mineral rights to any citizen who claimed them. 22 Every one of these homesteads opened and every resource extraction operation initiated without the express consent of the O’odham represented an illegal action under the Gadsden Treaty. The citizenship provisions of the Gadsden Treaty had granted citizenship to all former Mexican citizens and the O’odham were, by legal definition, included in this formulation. The United States, however, refused to consider “uncivilized” peoples as being worthy of the protections granted to citizens by the fourth amendment of the U.S. Constitution, which prohibits the expropriation of property. This refusal of the United States government to follow its own laws pertaining to Native Americans when those laws happen to stand in the way of U.S. interests has been a common occurrence in United States Indian policy. This land grab was only the first of many illegalities committed against the O’odham people by the United States and its citizens. In this respect the O’odham are in a special position when compared with many other tribes. While the theft of native lands by the United States Government was usually legally justified by treaty stipulations signed between a tribe and the U.S. government, this justification could not and cannot be used in the case of the O’odham since no treaty was ever signed with the O’odham by the United States Government. 23

For the most part, the O’odham did not resist this initial incursion of Anglo settlement, rather the O’odham practiced accommodation and moved farther out into the desert to shield themselves from the new settlers invading their lands. Traditional ways were maintained with the exception of the introduction of cattle ranching. The O’odham territory was well suited for the raising of cattle and a good number of O’odham became cattle ranchers, both for purposes of subsistence as well as for sale to Anglos residing in and around Tucson. In the 1880s, as increasing numbers of Anglo cattle ranchers began to invade and take over their pasture, some O’odham began to resist.

The O’odham resisted by stealing the Anglo cattle herds which were rounded up and driven south to be sold on the Mexican market. The expropriation of Anglo cattle herds was not isolated, and it became a major concern for the settlers and the government. In at least one case, a large cattle outfit was driven out of business. 24 The concern over this outbreak of O’odham theft of Anglo cattle was large enough that newspapers as far away as Los Angeles ran stories about the phenomenon. For the most part these stories seem to have been deliberately used to justify the enclosure of the O’odham into reservations as the government and Anglo cattle ranchers seized the opportunity to gain even more O’odham land by arguing that it was an unfair burden for the Anglo cattle ranchers to have to “support” the O’odham. 25 Here, in previous case study, we have another common attribute of U.S. Indian policy in general, and one which occurs again and again in the history of O’odham contact with the U.S. government and Anglo settlers – blaming the victim.

Another official position of United States Indian policy during this time period was that everything done to the Indians was, in the words of Indian Commissioner J. Q. Smith, in their own “best interests.” 26 Whether this obvious sham was based on a subconscious guilt and delusion or was a cynical example of “double-speak,” it is obvious that Native American’s best interest’s were the last thing on the government’s mind. Nevertheless, with this reasoning as justification, the first official reservation for the O’odham was created by executive order of President Grant on July 1, 1874. This small reservation surrounded the Old Catholic mission at San Xavier del Bac. It is estimated that only about ten percent 27 of the desert O’odham took up residence within this reservation – these were labeled as “civilized” O’odham by U.S. census takers. The vast majority of O’odham were labeled as “wild” and continued to live in the vast desert regions west of San Xavier del Bac. While it is obvious that the desert O’odham were resisting cultural assimilation by avoidance, even the mission O’odham maintained a resistance to European culture as the next example will illustrate.

While visiting the old mission at San Xavier a newspaper columnist from the Los Angeles Times wrote that upon her visit in 1882, she could see “not a single civilized human habitation within miles.” This writer goes on to state that the O’odham’s dwellings were in the form of “conical mud huts.” In the casual racism and Social Darwinist rhetoric of the period she also adds that,

“The Papagos are but little in advance of gophers and prairie dogs in their habitations.” 28

The point is that after more than 200 years of European influence, even the mission O’odham continued to build their traditional shelters. 29

Progressivism and Cultural Genocide: The Dawes Act

In 1887, the General Allotment Act, also known as the Dawes Act, was signed into law. The Dawes Act was the staging point for the forced assimilation of those remnants of Native American groupings which had not been totally decimated by the preceding period of “Indian Wars” and forced relocations. The essential function of the Dawes Act was to disrupt traditional tribal land holding patterns and thus force Native Americans into the Anglo system of private property. The O’odham, like most other Native American cultures, did not have a concept of private property – land was held in common for the benefit of the village group. Communally held land was an essential pre-requisite for their Anarchistic political system and extremely de-centralized tribal structure. 30

The first section of the Dawes Act provides for equal “sections” of land to be parceled out to each “head of family.” This head of family was always understood to be the father of each family when land was allotted. Thus, this first section of the act not only attempted to destroy the communal land system of Native Americans, it also instituted Patriarchy as the basis for social functioning in Native America. 31 In addition, Section Five of the Act also provides that any un-allotted lands be subject to purchase by the United States government. Section Six and Seven provide that all monies paid by the U.S. for un-allotted Native lands be held for each tribe by the U.S. Treasury and “subject to appropriation” by the U.S. government to repay itself for the implementation of allotment as well as to provide for the “civilization” of Native Americans. 32 In less veiled words, these sections are basically stating that Native Americans will be forced to pay for their own cultural annihilation.

This interpretation of the intent of the Dawes Act becomes clearer when one looks at the arguments and debates that took place in Congress and within self described progressive “Indian rights” groups such as the Indian Rights Association. Critics of the Dawes Act in Congress such as Rep. Russell Errett understood that

“the main purpose of this bill is not to help the Indian troubles so much as it is to provide a method for getting at the valuable Indian lands and opening them up for settlement.” 33

And Senator Dawes, the namesake of the final bill, speaking of the land and resources of Native Americans stated that

“civilization has got after these possessions with a greed never before equaled but it is idle to expect to stay it….” 34

As for the progressive Indian Rights Association, they argued that

“the organization of the Indians into tribes is, and has been, one of the most serious hindrances to the advancement of civilization, and that every effort should be made to secure disintegration of all tribal organizations….” 35

And one of their leaders, Reverend L. Abbott, provided justification with the statement:

“Barbarism has no rights which civilization is bound to respect.” 36

So here we have a self-proclaimed progressive Indian Rights organization arguing for cultural genocide and against the notion that Native Americans have any rights that civilized people are bound to respect! This conclusion provides a perfect example of the essence of “progressive” or “civilized” thought.

The Dawes Act had a much less devastating effect for the O’odham than it did for many other Native American tribes. At the time of its passage, the only official reservation for the O’odham was the San Xavier reservation which, as was stated earlier, was only a small 71,090 acre reservation around the old mission San Xavier del Bac. When the allotment agent came to San Xavier in 1890, he allotted out 41,600 acres of land to the 363 O’odham whom he counted in his census as being resident at the time. 37 The vast majority of the O’odham still continued to live west of San Xavier in the expansive desert regions and were little affected by the allotment schemes. Even those O’odham who lived in San Xavier and were allotted land paid little attention to the artificial boundaries drawn on paper which supposedly privatized their land – they continued to farm and graze the land communally. 38 This refusal to abide by the provisions of the Dawes Act is also a form of resistance to cultural assimilation and adds one more example to show that for those O’odham who resisted, the most often employed method of resistance was non-compliance and avoidance. This specific response to colonization was made possible by the isolation and expansiveness of their desert home, which many Anglo’s continued to view as a “hopeless desert.” 39

The Domestication of the “Wild Papago”

The vast majority of the O’odham continued to resist assimilation and maintained a fairly traditional lifestyle – minus the introduction of cattle herding and horse rearing. In the twenty years following the passage of the Dawes Act, a growing effort was made to enclose the “Wild Papago” 40 and forcibly strip them of their traditional culture and instill them with the “civilized” values of the industrial Anglo. As was mentioned previously in the paper, ranchers and the government used O’odham cattle theft from Anglo ranchers as one tool to justify the enclosure of the O’odham within a reservation. During this period, Anglo Cattle ranchers continued to encroach deeper and deeper into O’odham territory and scuffles began to break out.

In another classic example of the “blame the victim” tactic, a pro-enclosure story was printed in the Los Angeles Times, no doubt to build public pressure for the domestication of the “Wild Papago.” The story concerns a group of O’odham who had resisted an Anglo cattleman’s attempts to enclose one of their water sources. When these O’odham continually tore down the fence that this cattleman had built, the rancher filed a report with the local Indian Agency sheriff to have the men arrested. When the sheriff arrived to arrest the O’odham responsible for defending their water source, he was taken hostage. The sheriff was later released unharmed; however, the incident was used to make the argument that such troubles can only be expected to increase if the O’odham were not enclosed on a reservation where they could be more easily controlled and monitored. 41

The tactic of occupying and diverting natural water sources was one of the tools used by the Anglo settlers and government to destroy the self sufficiency of the O’odham and force them into reservations where they would be dependent on the government for their water and would thus be easier to control and monitor. Some of the O’odham clearly understood what was happening, which is evidenced by instances of resistance both to the enclosure of natural water sources as well as resistance to the drilling of wells. One example of the U.S. government using water as a tool of forced cultural assimilation can be found by looking at an event recorded by an O’odham calendar stick 42 keeper. In 1912, the O’odham residing in the village of Santa Rosa, an isolated and traditional village in the western desert region of O’odham territory, were paid a visit by an Anglo Indian Commissioner who wished to drill a well for them. The Chief of the village objected to the drilling of the well on the grounds that it would disturb their culture, their autonomy and their self-sufficiency. The government agent proceeded to have the well drilled anyway. Upon completion of the well, the Chief of the village, according to the calendar stick keeper, stated that

“the well must be left alone and, in order that the Papagos might continue their old life, water must still be carried from the spring in the foothills.” 43

However, the prohibition by the Chief could not be upheld due to the overwhelming convenience of the new well and after a period of abstaining from its usage, the village of Santa Rosa (including the Chief) gave in and thus was assimilated into the industrial system by being made dependent on the Government well. 44 During this same time period, encroaching Anglo farmers engaged in the diversion of O’odham water sources to irrigate their farms. This practice served as another method of forcing the self sufficient O’odham into a relationship of dependence upon the government. In many areas so much water was diverted that the O’odham could no longer grow their traditional summer crops. 45

In 1919, the first incarnation of an O’odham reservation to enclose the nearly two million acres of desert that the “Wild Papago” were residing in was established. The formation of the desert O’odham reservation in 1919 ushered in a period of exponentially increased government interference in O’odham matters, and of course, the various forms of coercive assimilation were multiplied. By 1933, thirty-two unwanted wells were drilled all over the new reservation. 46 The well drilling was often opposed by those who were trying to maintain the O’odham Him’dag – the traditional ways of the desert people.

Resistance and Collaboration: O’odham Responses to Forced Modernization

In contrast to the traditional O’odham who had maintained resistance to cultural assimilation for the past 300 years, there was also a small number of O’odham based in the new reservation that welcomed collaboration with the forces of Anglo modernization and advocated for cultural accommodation and in some instances for total cultural assimilation. These men would later form an organization called the Papago Good Government League, which would serve as the propaganda arm of the Bureau of Indian Affairs and government policy in general. The leadership of this new faction had been taken from their families as youths and placed in Protestant boarding schools to be culturally indoctrinated. The Tucson Presbyterian Training School was one of the indoctrination centers where many future members of the Good Government League had been sent. 47

Religious indoctrination, whether Catholic or Protestant, has always been one of the most powerful tools of colonization and its justification used by European invaders against the indigenous peoples of the Americas. The necessary counterpart to the forced indoctrination of Christian principals and morals has always been the repression of indigenous spiritual practices. The United States government understood the profound power that traditional spiritual practices had in maintaining group solidarity and cohesion and it is for this reason that such spiritual practices were made illegal and repressed historically. In 1883, a Court of Indian Offenses was established by congress at the request of Secretary of Interior Henry M. Teller to eliminate traditional spiritual practices. In a report to the commissioner of Indian Affairs, Teller laid out his goals and his rationale stating that,

“If it is the purpose of the Government to civilize the Indians, they must be compelled to desist from the savage and barbarous practices that are calculated to continue them in savagery….”

Teller went on to associate those who resisted the repression of their spirituality with the “non-progressive” faction of Indians and labeled traditional spiritualism as “debauchery,” “diabolism,” and “savagery.” The overarching argument of his letter is that in order to civilize the Indians and bring them into the industrial system, their traditional spiritualism must be destroyed. As an initial step towards this end, Teller advised that Medicine Men be “compelled” to desist from their practice of “deception.” 48

Although the Court of Indian Offenses advocated that coercion be used to repress and destroy indigenous spiritualism, it failed to succeed in this project even when it used force to try to stop traditional spiritual rituals. According to Historian Edward Spicer, the only thing the Court succeeded in doing was driving traditional spiritual practices underground. In the case of many resistant O’odham, traditional spiritual practices were continued without regard to regulations or prohibitions against them, and in many cases, federal authorities resorted to repression and arrest to try to stop these practices. One traditional spiritual practice of the O’odham which was particularly hated by the Protestant Missionaries and Indian Agents was the Vi-kita ceremony.

The Vi-kita ceremony of the O’odham has been written about and studied by many Anglo historians and anthropologists, the most prominent being Columbia Anthropologist Ruth Underhill. 49 Before going into a short description of the Vi-kita it is important to understand that this ceremony varied depending on who was conducting it and where it was being conducted. Peter Blaine, an influential O’odham man sympathetic to the traditional ways, wrote in his autobiography about Underhill’s methods. Blaine explained the traditional way for the O’odham to tell about their past was to do it

“in a group so that everybody had a chance to talk and tell it their way. Underhill was talking to just one man…Dr. Underhill was wrong all the way in how she got her information.” 50

As scholars from the dominant culture often do, Underhill had applied her own notions of hierarchy, authority and individualism to her work with the O’odham and totally disregarded their traditional methods of conveying information in a communal fashion.

The Vi-kita itself was a yearly rain and fertility festival preformed to initiate and give thanks for the yearly summer rains. The ceremony itself consisted of the communal singing of rain songs, dancing, intimate encounters, and the consumption of Navait (Saguaro wine), an alcoholic drink made by the fermentation of Saguaro Cactus buds. The consumption of this wine was meant to symbolize the connection between the sky and the earth. The intake of the Navait was representative of the earth’s intake of rain. Participants drank Navait until vomiting occurred as this act embodied the clouds issuing forth rain unto the earth. It was a powerful ceremony that bonded the O’odham with the elements of nature.

When Protestant missionaries, and a small number of Protestant O’odham in the Good Government League, backed by U.S. Indian Agents, began their attempts to usurp power on the newly formed western O’odham (Sells) 51 reservation in the early 20th century, one of the first things they attacked was the practice of the Vi-kita ceremony. In the early 1930s, Peter Blaine explained that the traditional O’odham from the San Xavier reservation would travel to the western reservation for the Vi-kita. He states that,

“In the late 1920s the government tried to stop this wine drinking ceremony on the Sells reservation. But no Papago or Agency police could ever stop it.”

In one instance Blaine tells the story of how he helped defend three traditional O’odham Vi-kita ceremony leaders when they were arrested by agents from the Indian Bureau and jailed in Tucson. During the trial, a group of Protestant O’odham men from the Good Government League 52 argued for the repression of the ceremony – one of these men, Richard Hendrix, would continue to plague the traditional O’odham in future encounters. To respond to the collaborationist Good Government League, the resistant traditional O’odham formed the League of Papago Chiefs to counter the attempts of the Protestant Good Government League to usurp control on the reservation. 53

The Indian Reorganization Act and O’odham land rights

On June 18th, 1934, President Roosevelt signed into law the Indian Reorganization Act which finally stopped the forced allotment process initiated by the Dawes Act in 1887. The Indian Reorganization Act was viewed by its proponents as being in the best interests of the Indians. One of the reasons for this view was the fact that the Dawes Act and its forced allotment provisions had resulted in the loss of 90,000,000 acres of tribal lands and it was hoped by some, including then Indian Commissioner John Collier, that the Indian Reorganization Act could be used to regain some of this lost land.

The public was also encouraged to view the Indian Reorganization Act as being beneficial for Native Americans. A large article in the Los Angles Times entitled “The Bill to Return Indian Rights” stated that:

“After a century of graft, plunder and injustice, this bill has the objective of handing their own souls back to the Indians.” 54

However, such optimism and notions of cultural relativism were not held by all. As a precursor to the Indian Reorganization Act, a report was prepared for the Secretary of the Interior in 1928 to lay out the need for a change in Federal Indian Policy. The report stated that the “great majority of Indians are ultimately to merge into the general population” and that it was the government’s responsibility to assimilate Native Americans into “white civilization” because “the hands of the clock cannot be turned backwards.” Sympathetic attempts to help Native Americans retain their culture were stigmatized as attempts to “preserve them as museum specimens.” 55 Indian Commissioner John Collier was one of those who believed that Native Americans should retain their culture and that “the awakening of the racial spirit must be sustained….” 56 However, although the finalized Indian Reorganization Act did contain elements that were meant to “help” Native Americans, many of its articles were still designed to impose “civilized” systems on Native Americans.

It can be argued that the intent of the finalized Indian Reorganization Act was to initiate a new chapter in the push for the total cultural assimilation of the Native American tribes. The argument that there was no qualitative change between the Dawes Act and the Reorganization Act is legitimate. The Indian Reorganization Act provides the examples for the argument. The main tool of assimilation in the Indian Reorganization Act was the provision in Section 17 which allowed for Native American tribes to form their own tribal governments, constitutions and laws which, although it is not specifically stated, were intended to be Anglo in structure and functioning. In the case that these native governments were not sufficiently acceptable to the U.S. government, section 17 also provided that all Tribal Government formations must be “approved by the Secretary of the Interior.” 57 This clearly shows that the intent of the Act was not to allow Native Americans to become fully autonomous, either culturally or politically. For a tribe such as the O’odham, which had a long history of decentralization and consensus decision making, the imposition of western style liberal democracy, with its attendant centralization and majority rule system, was an obvious method of forced cultural indoctrination. Peter Blaine, who was mentioned earlier, was an O’odham man who had sympathy for the traditional, decentralized and communal way of O’odham societal organization. When the collaborationist Papago Good Government League began to maneuver themselves into the position of representing all of the O’odham, Blaine took it upon himself to lead the charge to discredit their assertions to business interests and the Federal Government that they represented the O’odham. Blaine wrote that:

“This so-called council represented only their own church people, but they took it upon themselves to become a council for all Papagos. They had meetings. Nobody attended them but these four guys because most people didn’t recognize them as leaders.” 58

In 1934 Blaine, along with another O’odham from the Gila Bend reservation named Leon Pancho became the first O’odham to travel to Washington D.C. These two men were sent as representatives of the traditional chiefs of the O’odham villages to argue against a recent court order that closed the Sells reservation to outside, Anglo owned, mining. The court order was a result of a lawsuit brought by the members of the Good Government League, including Richard Hendrix, who had teamed up with outside lawyers. These lawyers were to receive as payment a ten percent share of all land reclaimed from the mining companies, or a monetary equivalent. As this entire procedure was done behind the backs of the majority of the O’odham, when it was revealed, there was great resentment towards the Good Government League by many of the O’odham.

While in Washington D.C., Blaine was informed of the pending Indian Reorganization Act, and he became a supporter of the Act due to its provision allowing for the self government of Native Americans, as well as a provision in section Six that allowed the Secretary of Interior to manage mineral, mining, and livestock on the reservation. 59 In the case of the O’odham this meant that the reservation would be re-opened to mining and they would regain an important means of economic sustenance. According to Blaine, the mines were an important economic resource for the O’odham as they provided jobs and a market where beef and other O’odham products could be sold. 60 This is yet another unfortunate example of how the incursion of Anglo industrial technology served to destroy the self-sufficiency of the O’odham by making them dependent on it for survival.

Whether or not the mines were truly in the best interest of the O’odham is a complex topic which cannot be dealt with here. However it should be stated that Blaine and his companions’ trip to Washington D.C. was financed by the Tucson Chamber of Commerce, an organization that functioned in support of the mining interests, not the O’odham. This Tucson Chamber of Commerce was the same organization that had aggressively petitioned President Wilson to rescind his 1916 act forming the Sells reservation because it prevented Anglo agricultural interests from exploiting the area’s “best agricultural and grazing lands.” 61

Resistance to and Collaboration with the “White Man’s War”

Not long after the passage of the Indian Reorganization Act and the formation of the first O’odham Tribal Government, the United States declared war on Japan, thus entering World War II. The participation of Native Americans in World War II has been well publicized, especially the role the Dineh (Navajo) played as code talkers in the South Pacific. The United States government and the mainstream media portrayed Native Americans as being eager to fight for their homeland, and eager to assimilate into “white civilization” once they returned from the war. Nearly 25,000 62 Native Americans served in the United States military during World War II, many of whom were no doubt under the impression that their service would be rewarded with increased “rights” after the war’s end. Instead, as a “reward” for Native Americans participation in World War II the United States government established the Indian Claims commission in 1946 to legalize the U.S. occupation of Native American Lands never granted to the U.S. by treaty, passed House Concurrent Resolution 108 to terminate tribal recognition as separate entities from the Federal Government, and then instituted a plan in 1954 to relocate Native Americans off the reservation and into “Indian Ghettos” in the nation’s large cities. 63 These were the “rewards” for participation in World War II.

Like many other Native American Tribes, some of the O’odham Nations members participated in World War II. Ruth Underhill claims that the O’odham enlisted to serve in World War II “in droves” 64 and it is documented that the O’odham tribal government bought $10,000 in war bonds. 65 However, the extent of this involvement was distorted by the media, academia, and even some of the O’odham leaders in the tribal government. Richard Hendrix, a former member of the collaborationist Good Government League, had risen to prominence in the new O’odham tribal government by this time and was interviewed by the Arizona Archaeological and Historical Society on November 16, 1942. In this interview Hendrix exposed the extent to which he had allowed his mind to be colonized and assimilated into that of the dominant white culture. Speaking of colonization in general and World War II in particular, Hendrix stated that the O’odham had:

Learned to love the American government and they learned to love the Stars and Stripes. And when the war came and the time came for our boys to be registered, there was no exception. They registered just the same as white boys did. And now they are out fighting alongside the white boys, the American boys. They are just as anxious as the white boys to kill as many Japs, to kill as many Germans, and they are very anxious to win this great war so that the Papago people in this desert land may continue to enjoy the freedom of their homes. 66

Hendrix’s internalization of white supremacist racial notions is a heart breaking and shocking example of the extent to which he had accepted the ideology of “white civilization.” In addition, his assertion that every O’odham boy registered for the war with “no exception” is glaringly false.

Aside from the fact that there are always exceptions to everything, there was also a large scale organized resistance to World War II led by an old Chief and medicine man, Pia Machita, and his band of traditional O’odham who resided in an isolated village in the north western area of the Sells Reservation known as the Hickwan district. According to Peter Blaine, the O’odham residing in some of the most isolated villages in the Hickwan district had not seen a white man until the 1930s, and continued to practice the traditional O’odham Him’dag. 67 When Pia Machita was informed of the compulsory registration of young O’odham boys for induction into World War II, he instructed the youth of his village to refuse to sign the registration forms when they were visited by the local Indian Agent. Pia Machita was a very traditional leader who refused cultural assimilation and would not accept the authority of the Bureau of Indian Affairs or the O’odham tribal government. Finally, after all efforts to persuade Pia Machita’s village to register had failed, the tribal chief of police and a gang of Federal Marshals led by U.S. Marshall Ben McKinney invaded the village at two in the morning on October 16th, 1941, with tear gas bombs and guns drawn – when the Marshals attempted to take Pia Machita into custody some of the young men from the village used force to liberate him and severely beat one of the federal marshals. In the face of this resistance, the government agents and their local collaborators retreated to Tucson. When the Attorney General’s Office heard of the resistance on the O’odham reservation, they immediately got involved in the effort to repress this draft resistance movement as quickly as possible to prevent its possible spread to other reservations. By May 17th, 1941, after a period of about six months of trying to track down Pia Machita and his small band of men, Marshall McKinney and O’odham collaborators including Jose Ignacio from the tribal government, surrounded Pia Machita in the village of Stoa Pitk and took him into custody without incident. 68

Peter Blaine was the O’odham tribal chairman during the time that Pia Machita was leading the draft resistance movement. Although he did not believe that Pia Machita and his men were threats in any way, he was annoyed by what he perceived to be their stubbornness and attributed their draft resistance to his belief that they “didn’t really understand what they were doing.” 69 In reality, it was Blaine who did not understand the reasons behind Pia Machita and his men’s resistance to enlistment. Pia Machita and his men understood very well what they were doing – they were resisting giving aid to a government that they understood was their enemy. Given this understanding, and given the dictionary definition of the word “collaboration,” it becomes necessary to label those O’odham who participated in the arrest of Pia Machita as such – collaborators. The understanding that the U.S. government was the enemy of the traditional O’odham of the Hickwan district was based upon a long history of attempts by the U.S. government to force the Traditional O’odham of that area to abandon the Him’dag and embrace elements of Anglo “progress” such as dams, railroads, wells, and the protestant religion. Despite Peter Blaine’s inability to understand why the O’odham in the Hickwan district rejected Anglo-civilization in its totality, he still maintained sympathy for the people there. When Pia Machita and two co-defendants were finally sentenced to serve 18 months in prison at Terminal Island Federal Prison for their roles in leading the resistance movement, Peter Blaine eventually came to their aid and used his connections as tribal chairman to persuade the sentencing Judge to release Pia Machita early and allow him to return to the reservation and his family. 70

Conclusion

The history of the O’odham’s contact with the United States government has been one marked by a persistent current of resistance to cultural assimilation into “white civilization.” This resistance has included a variety of tactics and actions. The favored tactic of resistance to assimilation for many of the O’odham groupings seems to have been that of avoidance and feigned accommodation to Anglo culture when expedient. However, as was evidenced by the O’odham’s early history of contact with the Spanish, they did not refrain from waging armed resistance to colonization when they were pushed into a situation where other tactics might have been ineffectual.

In addition to resistance and accommodation, it has also been shown that some of the O’odham choose to engage in direct collaboration with the Anglo colonization of their lands and minds. As this paper has shown, the levels of collaborative activity amongst the O’odham varied, and so did the effects of such collaboration. When investigating instances of collaboration it is always important to understand the context which produced them and to remember that the ultimate blame for a situation of oppression should always be placed upon the group committing the acts of repression – in this case the United States government and allied business interests. It is important to show such examples of collaboration and to understand that all human cultures who have been the victim of colonization have invariably contained individuals who chose to collaborate for a variety of reasons. The O’odham are no exception to this rule. Making apologies for collaboration or failing to mention the instances where such collaboration did occur creates a historical distortion and does nothing to aid present struggles for liberation.

The O’odham responses to colonization never represented a totality, but a strong current of resistance is evident throughout their history. In regards to the United States government, it can be said, given the primary sources looked at, and the final drafts of laws signed and policies followed, that the intent of the United States government toward all Native American tribes, when it was not outright genocidal, has been the cultural destruction and absorption of remaining Native Americans into the dominant industrial culture of “white civilization.” Regardless of the varying tactics used, and the various lip service about “best interests” and “justice,” it has been shown that there has never been a qualitative change in United States policy toward the O’odham people and Native Americans in general. The O’odham have maintained aspects of their traditional culture despite the best efforts of the government to force assimilation, not as a result of such efforts. A continuing current of struggle between the forces of colonization and resistance has persisted for centuries, in all its various forms, within the minds and bodies of many O’odham and will continue until liberation.

NOTES:

1
This date is based on archeological evidence gathered by E.W. Haury in Ventana Cave. Haury, E.W. The Stratigraphy and Archeology of Ventana Cave Arizona. Tuscon: University of Arizona Press, 1950. Cited from Williams, Thomas R. “The Structure of the Socialization Process in Papago Indian Society.” Social Forces, Vol.36, No.3. p.253.

2
Fontana, Bernard L. Of Earth and Little Rain: The Papago Indians. Tuscon: University of Arizona Press, 1989. pp.37-39.

3
The name “O’odham” is roughly translated as “the people” in the Piman dialect spoken by the various O’odham groupings.

4
In 1986 the tribal government of the Papago reservation officially changed its name to the Tohono O’odham Nation.

5
The term “civilized” is a problematic historical term, and its definition tends to be very subjective. The meaning of the term and its use as a label is heavily influenced by how the author and the reader understand its meaning. For the purposes of this paper, the term “civilized” refers to the totality of the “western” cultural, political, and economic system – and most importantly the belief that technological/industrial progress is inherently beneficial and liberatory. For most, being labeled “civilized” is viewed as a positive and the label of “un-civilized” or “savage” is viewed in the reverse. However, for the purposes of this study it is imperative to understand that this author views “civilization” itself as an inherently oppressive and destructive entity, and this must be kept in mind to correctly understand the arguments and analyses in the paper.

6
The term “soft power” refers to the concept of gaining influence and control over another group by means of the attraction of the dominating group’s cultural attributes and the use of commodification rather than using military might and coercion (“hard power”) to gain that influence. See Joseph S. Nye, Jr. Soft Power: The means to success in world politics. New York: Perseus Books, 2004.

7
Erickson, Winston T. Sharing the Desert: The Tohono O’odham in History. Tucson: University of Arizona Press, 2003.

8
Fontana, Bernard L. Of Earth and Little Rain: The Papago Indians. Tucson: University of Arizona Press, 1989.

9
According to Catholic missionary records, the numbers of mission O’odham during this time period were somewhere around 2,000. However, according to population estimates there were at least 10,000 O’odham peoples living in this area. See Fontana, Bernard L. Of Earth and Little Rain . pp.11,46.

10
Fontana, Bernard L., p.40.

11
It is well documented that many of the Missions resorted to physical abuse, forced confinement and occasional murder to coerce the O’odham into compliance. San Xavier del Bac, the largest and most famous of Catholic missions in O’odham lands was built with forced labor. See Daniel McCool; “Federal Indian Policy and the Sacred Mountains of the Papago Indians.” Journal of Ethnic Studies 9.3 (1981).p59.

12
Erickson, Winston P., p.66.

13
Fontana, Bernard L., pp.61-64.

14
Treaty of Guadalupe Hidalgo, Feb 2nd, 1848. United States Statutes At Large, pp. 922-943

15
For a detailed treatment of this series of events see; Garber, Paul N. The Gadsden Treaty. Glouchester: Peter Smith, 1959.

16
For more information on the removal of the Seminole; Stannard, David E. American Holocaust: The Conquest of the New World. New York: Oxford University Press, 1992. P.124. For additional information about the Seminole Wars see; Churchill, Ward. “A Little Matter Of Genocide: Holocaust and Denial in the Americas 1492 to the Present.” San Francisco: City Lights Books, 1997.

17
All dates for the political appointments of James Gadsden are cited from Paul Garber’s “The Gadsden Treaty.” Pages 74-81.

18
Racial Anglo-Saxonism was a belief popular in the later 19th century which held that Europeans of Anglo-Saxon descent were at the forefront of evolution and were responsible to bring civilization to the world. This ideology was used as a convenient justification for the extermination and removal of Native Americans. For a detailed study of this ideology see: Horsman, Reginald. Race And Manifest Destiny: The Origins of American Racial Anglo-Saxonism. Cambridge: Harvard University Press, 1981.

19
For a detailed investigation of the role that the railroads played in the Gadsden purchase see; Schmidt, Louis B. “Manifest Opportunity and the Gadsden Purchase.” Arizona and the West, vol.3 (autumn 1961).

20
Forbes, Jack D. The Papago-Apache Treaty of 1853: Property Rights and Religious Liberties of the O’odham, Maricopa and Other Native Peoples. Davis: Native American Studies Tecumseh Center, U.C. Davis, 1979. p.1.

21
United States Congress. Joint Special Committee. Condition of The Indian Tribes. Report of the joint special committee, appointed under joint resolution of March 3, 1865. With an appendix. Washington, D.C.: United States Government Printing Office, 1865.

22
Erickson, p.77

23
During this time period many treaties were negotiated with native tribes in the regions west of the Mississippi to gain legal justification for the United States’ theft of their lands. For a detailed list of treaties signed between the United States and Native American tribes, see the compendium edited by Charles J. Kappler. Indian Affairs: Laws and Treaties. 7 volumes. Washington, D.C.: Unites States Government Printing Office, 1903-4.

24
Spicer, Edward H. Cycles of Conquest: The Impact of Spain, Mexico, and the United States on the Indians of the Southwest, 1533-1960. Tucson: The University of Arizona Press, 1962. p.138.

25
“Arizona News; Papago Cattle-thieves Brought to Justice.” Los Angeles Times. Feb 1, 1894. Also see: “Arizona News; Report Showing the Depredations Committed by Papago Indians on Stockmen’s Herds.” Los Angeles Times. June 8, 1895, In addition see; “Arizona News: Papagoes Destroying Cattle in Large Numbers.” Los Angeles Times. Mar 23, 1894.

26
Kehoe, Lawrence. “Our New Indian Policy and Religious Liberty.” Catholic World, vol. 26 (Oct. 1887). P.96.

27
Erickson p.78.

28
“Tucson And Fort Lowell; Notes of a Visitor – The Church of San Xavier.” Los Angeles Times. Nov 18, 1882.

29
The Spanish had brought the adobe style of construction to the O’odham but, although the resources for adobe construction were readily available to the O’odham at San Xavier, they continued to build their traditional grass huts.

30
For a detailed study of traditional O’odham tribal structure and life style see; Underhill, Ruth M. Social Organization of the Papago Indians. Columbia: Columbia University Press, 1939. ________. Papago Woman. New York: Holt, Rinehart and Winston, 1979.

31
For the most part, traditional Native American societies exhibited gender parallelism and were rarely if ever patriarchal by definition. For a detailed study of gender in Native America see: Allen, Paula G. The Sacred Hoop: Recovering the Feminine in American Indian Traditions. Boston: Beacon Press, 1986.

32
All direct quotations from Dawes Act. General Allotment Act (Dawes Act). February 8, 1887. Printed in its totality in: Prucha, Francis, P. ed. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000.

33
U.S. Congress, House Committee on Indian Affairs, Lands in Severalty to Indians: Report to Accompany H.R. 5038, 46th Cong., 2nd sess., May 28, 1880, H. Rept. 1576, pp.7-10. Reproduced in: Washburn, Wilcomb E. The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887. Philadelphia: J.B. Lippincott Co., 1975.

34
Letter from Henry L. Dawes to Henry M. Teller (Commissioner of Indian Affairs), September 19, 1882. Dawes Papers, Library of Congress, Washington, D.C. Reproduced in: Washburn, Wilcomb E. The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887. Philadelphia: J.B. Lippincott Co., 1975.

35
Washburn, Wilcomb E. The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887. P.12.

36
Washburn, p.16.

37
Fontana, pp. 77-79.

38
Erickson, p. 92.

39
“Baboquivari Peak.” Los Angeles Times. Nov 4, 1894.

40
The term “Wild Papago” was a term used by the government and media to marginalize those O’odham who continued to resist “civilization.”

41
“The Indian War Cloud.” Los Angeles Times. May 22, 1885.

42
The Calendar Stick was a device used by the O’odham as a tool to aid in the remembering of their history. The Calendar Stick itself was a cactus stick on which notches were carved at various intervals which aided the history keeper in the remembrance of events.

43
Fontana, p.54.

44
This example is meant to show the insidious nature of industrial technology and is not intended to place any blame on this specific group of O’odham for their ultimate choice to begin using the well. This example is given to show how industrial technology always comes with strings attached. In this case, once the village becomes dependent on the well they in turn become dependent on the Anglo civilization which is needed to maintain the functioning of such a well, and thus become less able to resist other Anglo incursions. In addition it must be pointed out here that the traditional water gathering procedure talked about was preformed by O’odham women. Due to this fact, some may feel that by resisting the building of the well, the male O’odham are in fact seeking to perpetuate patriarchy. It is true that the O’odham did have a system of gendered roles, but the overall system made room for exceptions and is best characterized as one of gender parallelism, not patriarchy. It is the Anglo industrial system that brought patriarchy to the O’odham. For more information see: Underhill, Ruth. Papago Woman. New York: Holt, Rinehart and Winston, 1979. Also see: Allen, Paula G. The Sacred Hoop: Recovering the Feminine in American Indian Traditions. Boston: Beacon Press, 1986.

45
Forbes, Jack D. The Papago-Apache Treaty of 1853: Property Rights and Religious Liberties of the O’odham, Maricopa and Other Native Peoples. Davis: Native American Studies Tecumseh Center, U.C. Davis, 1979. pp..5-8.

46
Spicer, p. 140.

47
Spicer, p.141.

48
All quotes taken directly from: House Executive Document no.1, 48th Cong., 1st sess., serial 2190, pp.x-xii. Reproduced in; Prucha, Francis, P. ed. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000.

49
For a detailed account of the Vi-kita see: Davis, Edward H. The Papago Ceremony of Vikita. New York: Museum of The American Indian, 1920. Also see: Underhill, Ruth. Papago Woman. New York: Holt, Rinehart and Winston, 1979.

50
Blaine, Peter. Papagos and Politics. Tucson: The Arizona Historical Society, 1981. p.42.

51
The expansive western O’odham reservation was officially called the Sells reservation. It was named after the first Indian agent in the region, John Sells.

52
The Good Government League was formed by a small group of Protestant O’odham who used the organization to advocate for the assimilation of the O’odham into Anglo civilization as well as to promote general U.S. Indian policy.

53
Blaine, pp.40-50.

54
“Bill To Return Indian Rights ” Los Angeles Times. June 8, 1934.

55
Lewis Meriam et al., The Problem of Indian Administration. Baltimore: Johns Hopkins Press, 1928. Selection printed in: Prucha, Francis, P. ed. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000.

56
Annual Report of the Secretary of Interior, 1934, pp.78-83. Reprinted in; Prucha, Francis, P. ed. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000.

57
Wheeler-Howard Act (Indian Reorganization Act) June 18, 1934. U.S. Statutes at Large, 48:984-88. Re-printed in: Prucha, Francis, P. ed. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000.

58
Blaine, p.50.

59
Wheeler-Howard Act (Indian Reorganization Act) June 18, 1934. U.S. Statutes at Large, 48:984-88. Re-printed in: Prucha, Francis, P. ed. Documents of United States Indian Policy. 3rd ed. Lincoln: University of Nebraska Press, 2000.

60
Blaine, pp.50-53.

61
McCool, Daniel. “Federal Indian Policy and the Sacred Mountains of the Papago Indians.” Journal of Ethnic Studies 9.3 (1981). p.62.

62
Holm, Tom. “Fighting A White Mans War: The Extent and Legacy of American Indian Participation in World War II.” The Journal of Ethnic Studies. 9.2. p.70.

63
For more on this aspect of the Indian Claims Commission, and a discussion about the termination act see: Forbes, Jack D. The Papago-Apache Treaty of 1853: Property Rights and Religious Liberties of the O’odham, Maricopa and Other Native Peoples. Davis: Native American Studies Tecumseh Center, U.C. Davis, 1979.

64
Underhill, Ruth. Papago Woman. New York: Holt, Rinehart and Winston, 1979. P.94.

65
Blaine, p.115.

66
Hendrix, Richard. Talk by Richard Hendricks, Prominent Papago Indian, Given at the Arizona Archaeological and Historical Society, November 16, 1942. The Kiva, vol. 8 (Nov. 1942).

67
Blaine, p.92.

68
Flaccus, Elmer. “Arizona’s Last Great Indian War: The Saga of Pia Machita.” The Journal of Arizona History, vol. 22 (1981).

69
Blaine, p.101.

70
Blain, pp.103-4.

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