Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction


Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION,

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”).

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1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
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Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes, but is not limited to, the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; ?

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would not “arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature.” The Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
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Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he 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 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.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 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). “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). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . 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.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that ‘resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because the [Plaza Order] would satisfy even the strictest test.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . enforce regulations of the time, place, and manner of expression which [1] are content- neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government Services Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

Occupy v. Martinez (Plaza Protest Ban) 2015 Order Granting Prelim Injunction


While we await a judge’s response to the complaint and motion for a preliminary injunction against DIA’s free speech permit, I was drawn to reminisce about an earlier federal injunction GRANTED against Denver’s 2nd Judicial District. It was/is (!) also a preliminary injunction curbing police intimidation. This one prevents arrests of Jury Nullification pamphleteers at the Lindsey Flanigan Courthouse in Denver. More broadly, it halts the enforcement of the despotic “Chief Justice Order 1” which attempted to curb free speech in Tully Plaza, between the courthouse and the jail, site of innumerable protest rallies since the facility was erected in 2010. After a protracted legal battle, the case will finally come to trial in April 2017. This case also started with police overreach, then a complaint, a motion, and a hearing. In August 2015, US District Judge William Martinez issued the below court order granting the preliminary injunction.

Document 28 Filed 08/25/15 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 15-cv-1775-WJM-MJW

ERIC VERLO,?
JANET MATZEN, and?
FULLY INFORMED JURY ASSOCIATION,

Plaintiffs, v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality,?ROBERT C. WHITE, in his official capacity as chief of police for Denver, and CHIEF JUDGE MICHAEL MARTINEZ, in his official capacity as chief judge of the Second Judicial District,

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

Plaintiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (“FIJA”) (collectively, “Plaintiffs”) bring this lawsuit to establish that they have a First Amendment right to distribute and discuss literature regarding jury nullification in the plaza outside of Denver’s Lindsey-Flanigan Courthouse (“Courthouse Plaza” or “Plaza”). (ECF Nos. 1, 13-1.) The Lindsey-Flanigan Courthouse is where most criminal proceedings take place for Colorado’s Second Judicial District (which is coterminous with the City and County of Denver).

Plaintiffs have sued the City and County of Denver itself and its police chief, Robert C. White, in his official capacity (jointly, “Denver”). Plaintiffs have also sued the Hon. Michael A. Martinez 1 in his official capacity as Chief Judge of the Second Judicial District. Out of recognition that Plaintiffs’ lawsuit does not target Chief Judge Martinez himself but rather a policy promulgated by the Second Judicial District through Chief Judge Martinez, the Court will refer below to Chief Judge Martinez as “the Second Judicial District.”

On the same day Plaintiffs filed their complaint, they also moved for a preliminary injunction to restrain Defendants from taking any action to stop them from distributing certain literature regarding, or advocating for, jury nullification on the Courthouse Plaza (“Motion”). (ECF No. 2.) The Second Judicial District, represented by the Colorado Attorney General’s office, filed a response defending its current policy of limiting expressive activities to certain areas away from the main walkways leading to the Courthouse doors. (ECF No. 24.) Denver, represented by the Denver City Attorney’s office, did not file a response, but instead filed a joint stipulation with Plaintiffs regarding the status of the Plaza. (ECF No. 23.) As discussed further below, Denver (a) has no intent to enforce the Second Judicial District’s policy that would otherwise restrict Plaintiffs’ activities, and (b) agrees with Plaintiffs that they have a First Amendment right to distribute and discuss their literature essentially anywhere on the Courthouse Plaza, including in the areas designated as restricted by the Second Judicial District.

This Court held an evidentiary hearing and heard oral argument on August 21, 2015. Having considered all of the filings, evidence, and arguments submitted to date, the Court grants Plaintiffs’ Motion for the reasons explained below.

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1 No relation to the undersigned.?
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I. LEGAL STANDARD

To prevail on a motion for preliminary injunctive relief, Plaintiffs have the burden of establishing that four equitable factors weigh in their favor: (1) they are substantially likely to succeed on the merits; (2) they will suffer irreparable injury if the injunction is denied; (3) their threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

II. BACKGROUND

A. Facts Alleged in the Original Complaint

Plaintiffs’ original complaint recounts the story of two non-parties, Mark Iannicelli and Eric Brandt, who were passing out pamphlets on the Courthouse Plaza on July 27, 2015. (ECF No. 1 ¶ 14.) The pamphlets were titled “Fresh Air for Justice” and “Your Jury Rights: True or False?” (Id. ¶ 15; ECF No. 1-3; ECF No. 1-4.) Both pamphlets contain some history of jury nullification and various general statements about the jury’s role as envisioned by the Framers. (See generally ECF Nos. 1-3, 1-4.) But the pamphlets also contain certain calls to action which could raise concern. “Fresh Air for Justice,” for example, contains the following:

• “Judges say the law is for them to decide. That’s not true. When you are a juror, you have the right to decide both law and fact.” (ECF No. 1-3?at 3.) ?

• “If the law violates any human rights, you must vote no against that law by voting ‘not guilty.’” (Id. (emphasis in original).) ?

“Fresh Air for Justice” also contains the following, which could be interpreted as encouraging prospective jurors to lie during voir dire:

When you are called for jury duty, you will be one of the few people in the courtroom who wants justice rather than to win or to score career points. For you to defend against corrupt politicians and their corrupt laws, you must get on the jury. During the jury selection, prosecutors and judges often work together to remove honest, thinking people from juries. ?

When you’re questioned during jury selection, just say you don’t keep track of political issues. Show an impartial attitude. Don’t let the judge and prosecutor stack the jury by removing all the thinking, honest people!

Instructions and oaths are designed to bully jurors and protect political power. Although it all sounds very official, instructions and oaths are not legally binding, or there would be no need for independent thinking jurors like you.?

?(Id. at 4.)

The other pamphlet, “Your Jury Rights: True or False?”, does not contain language quite as direct as the foregoing, but it does declare, “You cannot be forced to obey a ‘juror’s oath.’” (ECF No. 1-4 at 3.) ?

Iannicelli was arrested on the Plaza that day, and Brandt was arrested on a warrant a few days later. (ECF No. 1 ¶ 18.) Both were charged with jury tampering: “A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.” Colo. Rev. Stat. § 18-8-609(1). The affidavit supporting Brandt’s arrest mentions that he and Iannicelli had been on the Courthouse Plaza at a time that jurors “would be expected to be arriving” for the ongoing death penalty prosecution of Dexter Lewis. (ECF No. 1-2 at 4.) 2

Plaintiff Eric Verlo “wishes to pass out the same literature on the Lindsey-Flannigan [sic; ‘Flanigan’] plaza as Eric Brandt and Mark Iannicelli were passing out which caused them to be arrested.” (ECF No. 1 ¶ 9.) Plaintiff Janet Matzen wishes to do the same. (Id. ¶ 10.) Plaintiff FIJA is

an association, based in Montana, who’s [sic] members passionately believe in the concept of jury nullification. FIJA intends to hold an educational campaign in Denver on September 5, 2015 where its members wish to pass out the same brochures on the Lindsey-Flannigan [sic] plaza as Eric Brandt and Mark Iannicelli . . . .

(Id. ¶ 11.) 3 Plaintiffs say that the arrests of Brandt and Iannicelli have caused them to to fear that they too might be arrested and prosecuted. (Id. ¶ 22.)

——————
2 Lewis was charged with murdering five individuals at a Denver bar in 2012. See, e.g., Jordan Steffen & Matthew Nussbaum, “Denver jury hears opening arguments in five Fero’s bar killings,” Denver Post (July 20, 2015), at http://www.denverpost.com/news/ci_28513519/denver-jury-hears-opening-arguments-five-feros-bar (last accessed Aug. 24, 2015).

3 September 5, 2015, is a Saturday —an unlikely day for a jury nullification advocate to reach his or her target audience at a courthouse. When this was pointed out at the preliminary injunction hearing, counsel for Plaintiffs qualified the date with an “on or about.”
——————

?B. Facts Alleged in the Amended Complaint & Supplemental Filings

Two days after filing suit, Plaintiffs filed an amended complaint to insert allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13-1 ¶ 2.) The order, designated “CJO 15-1” and dated August 14, 2015, was titled “Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse.” (ECF No. 24-1.) This order was actually amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and admitted as Exhibit 1 in that hearing. (See ECF No. 25-1.) The Court will refer to the amended order as the “Plaza Order.” In relevant part, it reads as follows:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, as depicted in the highlighted areas of the attached map [reproduced below], without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration;

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds; ?

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

(Id. at 1–2 (formatting in original).) The Court will refer to the Plaza Order’s numbered paragraphs by their number, e.g., “Paragraph 1 of the Plaza Order” (referring to the forms of prohibited expressive activity). In their amended complaint, Plaintiffs allege that the Plaza Order was “apparently” entered in response to Brandt’s and Iannicelli’s actions. (ECF No. 13-1 ¶ 2.)

The “attached map” referenced in the Plaza Order is reproduced on the following page:

(Id. at 3.) This map shows an aerial view of the Courthouse. The top of the map is north. The Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the map. Immediately to the left (west) of the Courthouse is Fox Street. Immediately to the north is Colfax Avenue. Immediately to the right (east) of the Courthouse grounds is Elati Street, which is closed to traffic other than police vehicles as it runs past the Courthouse. Elati bisects a circular area paved in a tan color. Just to the right (east) of Elati, and not depicted in the map, is Denver’s Van Cise-Simonet Detention Center (“Detention Center”), which houses pretrial detainees. Thus, the area between the Courthouse and Detention Center is a fairly spacious place suitable for public gatherings.

Immediately to the east and west of the Courthouse are areas that the Second Judicial District highlighted in yellow to indicate where expressive activity is restricted (“Restricted Area”). This matter principally concerns the arc-shaped portion of the Restricted Area to the east of the Courthouse (“East Restricted Area”). The East Restricted Area comprises the following:

• planter boxes and public art (collectively, “Landscaping”); ?

• sidewalks, including a narrow sidewalk beginning at the north of the map ?(just below the blue bus stop icon) and following the arc of the planter boxes until it reaches a much wider sidewalk that completes the arc, which itself connects with the awning-covered steps leading to the Courthouse front doors depicted in approximately the center of the map (collectively, “Sidewalks”); and ?

• a gravel passive security feature between the narrow sidewalk and the Courthouse itself (“Gravel Area”). ?

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

?Plaintiffs called as a witness Commander Antonio Lopez of the Denver Police Department. Lopez oversees the Denver Police district that encompasses the Courthouse and the Detention Center. Lopez testified that the Courthouse opened in 2010 or 2011. During that time, he has seen “more protests [in the area between the Courthouse and the Detention Center] than [he can] recall. At one point w e were averaging about two or three a week, in that area.” On cross-examination, Lopez clarified that most of those protests were nearer to the Detention Center than the Courthouse. Nonetheless, to Lopez’s knowledge, the Denver Police Department has never restricted or interfered with any peaceful First Amendment activity taking place between the Courthouse and the Detention Center.

2. Mr. Steadman

The Second Judicial District called Steven Steadman, who is the Colorado judicial branch’s security administrator. Steadman was closely involved in the discussions leading up to the Plaza Order. Steadman testified that, during those discussions, he was unaware of Brandt and Iannicelli or the distribution of jury nullification literature, and that the Plaza Order actually arose from very different concerns.

According to Steadman, discussions began with Chief Judge Martinez in early July 2015 because the Dexter Lewis trial was scheduled to overlap with another death penalty trial in Arapahoe County, i.e., the trial of Aurora theater shooter James Holmes. Steadman and Chief Judge Martinez specifically worried about potentially violent protests that might break out if Lewis (who is black) eventually received the death penalty but Holmes (who is white) did not. Proactively seeking to avoid such a problem, Steadman gave Chief Judge Martinez a copy of an order entered by the Hon. Carlos A. Samour, Jr., who presided over the Holmes trial in Arapahoe County. Judge Samour’s order apparently was a model for what the Second Judicial District eventually issued as the Plaza Order.

On cross-examination, Steadman confirmed that the Plaza Order was intended specifically to address the protests that might erupt if Holmes and Lewis were treated differently with respect to the death penalty. Steadman admitted, however, that his office could require several hours’ notice between the announcement that the jury had reached a verdict and the actual reading of the verdict, which would permit a police presence to assemble in anticipation of protests. Steadman also admitted that nothing like the Plaza Order had been in place or enforced prior to August 14, 2015, and that passing out jury nullification literature did not present any security risk beyond what the Second Judicial District has tolerated, without incident, since the Courthouse opened.

III. ANALYSIS

A. Article III Standing

As mentioned previously, Denver has stipulated with Plaintiffs that it will not enforce any prohibition on distributing jury nullification literature on the Courthouse Plaza. Specifically, Denver has stipulated that

Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the Plaza are entitled to do so and that Denver, through its police or sheriff department, will not arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature. The parties stipulate that Plaintiffs’ proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law. . .

***

. . . Denver stipulates that it does not intend to enforce the [Plaza] Order as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.

(ECF No. 23 ¶¶ 2, 4.)

?Given this stipulation, the Second Judicial District argues that Plaintiffs lack Article III standing to bring this lawsuit because no threat of enforcement is imminent. (ECF No. 24 at 6–8.) See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“the irreducible constitutional minimum of standing” includes, among other things, an “actual or imminent” “invasion of a legally protected interest”); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (to obtain prospective relief, a plaintiff must show a “credible threat of future prosecution”). As stated at the preliminary injunction hearing, however, the Court rejects this contention.

The Second Judicial District’s standing argument assumes that the only way an individual could run afoul of the Plaza Order is through Denver’s independent enforcement efforts. But Chief Judge Martinez, and perhaps any other judge in the Second Judicial District, could issue a contempt citation for violating the Plaza Order. Cf. Schmidter v. State, 103 So. 3d 263, 265–69 (Fla. Dist. Ct. App. 2012) (distributor of FIJA literature convicted of contempt for violating an administrative order similar to the Plaza Order). The violator would then be required to appear before the issuing judge, and if he or she fails to appear, an arrest warrant can issue. See Colo. R. Civ. P. 107(c). Denver may then be obligated to arrest the violator —not on the authority of the Plaza Order, but on the authority of the judge’s contempt citation. See id. (requiring the sheriff to carry out the arrest). The Court takes judicial notice of the fact that Colorado state law enforcement officers, not subject to Denver’s stipulation, could also effect the arrest of such a hypothetical violator.

Thus, the Court finds that Article III standing still exists, and the Court will move on to the elements Plaintiffs must establish to secure a preliminary injunction. To repeat, those elements are: (1) likelihood of success on the merits; (2) irreparable injury if the injunction is denied; (3) the threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. Westar Energy, 552 F.3d at 1224.

?B. Likelihood of Success

Evaluating the likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that the First Amendment grants them a right to discuss and distribute pamphlets about jury nullification with individuals entering and leaving the Courthouse. 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’ Pamphlets and Oral Advocacy of the Message Contained in the Pamphlets?

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 on this point. The Second Judicial District has raised no argument that any part of the message conveyed by the pamphlets is unprotected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on the question of whether the First Amendment protects their message.

2. Is the Courthouse Plaza a Public Forum?

The Court must next decide whether the Courthouse Plaza—and the Restricted Area specifically—is a public or nonpublic 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).

?The public/nonpublic inquiry presents a unique dilemma in this case. On the one hand, Denver’s stipulation with Plaintiffs includes the following: “The Lindsey-Flanigan plaza . . . which is located between the Van Cise-Simonet Detention Center and the Lindsey-Flanigan courthouse is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest . . . .” (ECF No. 23 ¶ 1 (emphasis added).) On the other hand, the Second Judicial District strong ly disagrees:

. . . Plaintiffs assert that the courthouse plaza is a traditional public forum, and therefore maintain that Chief Judge Martinez’s administrative order must be strictly scrutinized. As a matter of state law, however, Chief Judge Martinez— and not Denver—is responsible for the oversight of the courthouse and the adjoining grounds. Thus, any concession on this point by Denver binds neither the parties nor this Court.

(ECF No. 24 at 8.) Apparently a minor turf war has erupted between Denver and the Second Judicial District over control of the Courthouse grounds.

When asked at the preliminary injunction hearing regarding the “state law” that gives Chief Judge Martinez “responsib[ility] for the oversight of the courthouse and the adjoining grounds,” counsel for the Second Judicial District directed the Court to Colorado Revised Statutes § 13-3-108(1). That subsection reads: “The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.” Neither this language, nor anything else in § 13-3-108, appears to relate to a chief judge’s authority over courthouse policies or courthouse grounds.

?Counsel for the Second Judicial District also pointed this Court to State ex rel. Norton v. Board of County Commissioners of Mesa County, 897 P.2d 788 (Colo. 1995) (“Mesa County”). In Mesa County, the county commissioners defied an order from the Twenty-First Judicial District’s chief judge requiring additional security measures at the county courthouse. See Mesa County, 897 P.2d at 789. The county commissioners further announced their intent to stop providing support of any kind to the Twenty-First Judicial District, arguably in violation of § 13-3-108(1) (quoted above), Colorado Revised Statutes § 13-1-114(2) (requiring county sheriffs to assist the judiciary when the judiciary perceives a “risk of violence in the court”), and Colorado Revised Statutes § 30-11-104(1) (requiring each county to “provide a suitable courthouse”). See id. The county commissioners believed that Colorado’s constitutional Taxpayers’ Bill of Rights allowed the county to disregard the foregoing statutes because they created an impermissible “subsidy” to the court system. Id. at 789–90. The Colorado Supreme Court rejected the county commissioners’ position and held that counties’ statutory duties toward the court system are not “subsidies” under the Taxpayers’ Bill of Rights. Id. at 791.

The Mesa County decision highlights the relationship between counties and the state courts that sit within them. It emphasizes county sheriffs’ duties to assist judges in preventing “violence in the court.” Colo. Rev. Stat. § 13-1-114(2). It does not support the Second Judicial District’s notion that it controls and can speak for the status of the Courthouse grounds.

Finally, counsel for the Second Judicial District cited this Court to In re Court Facilities for Routt County, 107 P.3d 981 (Colo. App. 2004) (“Routt County”). Routt County held that, under certain circumstances, a state judicial district’s chief judge has inherent authority to order the board of county commissioners to design and pay for a new courthouse. Id. at 984. Quoting Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984), Routt County relied on the notion that “courts necessarily possess certain inherent powers, which . . . consist of ‘all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective.’” Routt County, 107 P.3d at 984.

Both Routt County and Peña specifically address the Colorado judiciary’s inherent authority to order another state or municipal entity to spend money on the judiciary’s behalf. That power is not at issue here. Nonetheless, the inherent authority described in Routt County and Peña could conceivably also extend to entering orders such as the Plaza Order. The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza. For at least three reasons, the Court concludes that Plaintiffs are likely to prevail against the Second Judicial District on that question.

First, counsel for the Second Judicial District agrees that Denver owns the Courthouse itself and all of its grounds.

Second, counsel for the Second Judicial District further stated that there was no lease agreement of which he was aware between Denver and the Second Judicial District. Rather, the Second Judicial District occupies the Courthouse “as provided by law.”

?Third, it is undisputed that the Second Judicial District is not the Courthouse’s sole occupant. Denver County Court also sits in the Courthouse. Denver County Court is unique among county courts in Colorado because the Colorado Constitution grants Denver the authority to set the “number, manner of selection, qualifications, term of office, tenure, and removal of [its] judges.” Colo. Const. art. VI, § 26. Moreover, a Chief Justice Directive from the chief justice of the Colorado Supreme Court states that “[t]he chief judge of the Second Judicial District shall not have administrative authority over the Denver County Court.” CJD 95-01, Preamble (amended Aug. 17, 2012), available at https://www.courts.state.co.us/Courts/Supreme_Court/Directives/95-01amended8-17-12.pdf. Thus, there are two distinct judicial bodies operating in the Courthouse, and the Second Judicial District apparently cannot speak for both.

For all these reasons, the Court finds that Plaintiffs are likely to prevail in their contention that Denver controls and speaks for the Courthouse Plaza. 4 Because Denver has stipulated that the Courthouse Plaza is a public forum, Plaintiffs are likewise likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum. See Cornelius, 473 U.S. at 800. 5

Moreover, the Court notes that the Second Judicial District has not specif ically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that “resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because [the Plaza Order] would satisfy even the strictest test.” (ECF No. 24 at 9.) Thus, the Court turns to the question of whether the Plaza Order can survive a strict scrutiny analysis. 6

—————
4 Ultimately, a Colorado state court may need to resolve this question. See, e.g., CJD 95-01 ¶ 15 (“Any disputes arising from the exercise of the authority described in this directive shall be resolved by the Chief Justice.”). In this posture, however, the Court need only conclude that Plaintiffs are likely to succeed.

5 If the Courthouse Plaza is indeed a public forum, it would be unique in that respect. The parties have not cited, nor could the Court find, a single case in which courthouse grounds were deemed a public forum. Cf. Huminski v. Corsones, 396 F.3d 53, 90–91 (2d Cir. 2005) (courthouse grounds not a public forum); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002) (same), abrogated on other grounds by Winter v. NRDC, 555 U.S. 7 (2008); Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006) (same); Schmidter, 103 So. 3d at 270 (same).

6 The ensuing analysis assumes, of course, that the Second Judicial District may attempt to enforce the Plaza Order through its own contempt power. If such power did not exist, there would likely be no reason to scrutinize the Plaza Order under any constitutional standard given Denver’s control over the Plaza and its stipulation not to interfere with Plaintiffs’ intended activities. (See Part III.A, supra.)
—————

3. Is the Plaza Order Narrowly Tailored to Serve a Significant Government Interest, and Does it Leave Open Ample Alternative Means of Communication?

“In [a] quintessential public forum[], the government may not prohibit all communicative activity.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also id. at 46 (holding that the government may un-designate a designated public forum, but until it does so, “it is bound by the same standards as apply in a traditional public forum”). The state may, however, “enforce regulations of the time, place, and manner of expression which [1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” Id. The Court will address each element in turn as it applies to the Plaza Order.

a. “Content-Neutral”?

The Plaza Order applies “without regard to the content of any particular message, idea, or form of speech.” (ECF No. 25-1 at 1.) On its face, then, it appears content-neutral. Plaintiffs have not argued otherwise.

b. “Narrowly Tailored to Serve a Significant Government Interest”

The Plaza Order itself asserts several interests:

. . . to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum . . . .

(Id.) However, in response to Plaintiffs’ Motion, the Second Judicial District has only defended the Plaza Order on the bases of preserving “the efficient functioning of the court” (e.g., unhindered ingress and egress to the Courthouse) and “maintain[ing] public safety.” (ECF No. 24 at 12.)

These are potentially “significant” government interests. Legitimate time-place- manner restrictions in a public forum can be motivated by “objectives [such as] public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002). But the Court finds on this record that Plaintiffs are likely to succeed in proving that the Plaza Order is not narrowly tailored to these stated objectives. Paragraph 1 of the Plaza Order bans essentially all expressive activity regardless of whether it would affect “the efficient functioning of the court” or threaten “public safety.” Courts look dimly on such “First Amendment Free Zones.” See Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); First Unitarian, 308 F.3d at 1132.

Moreover, in the Second Judicial District’s briefing (see ECF No. 24 at 12) and at the preliminary injunction hearing, it became clear that the sole motivating concern behind the Plaza Order was potentially violent protests that could follow if Dexter Lewis receives the death penalty. Steadman, the Second Judicial District’s witness, agreed that other measures could address that concern, e.g., he could arrange for additional security well in advance of any verdict announcement. He also agreed that Plaintiffs’ activities posed no greater threat to the Courthouse than it has faced in the last five years, when expressive activities have been unrestricted. Thus, the Court finds that Plaintiffs will likely demonstrate that at least Paragraph 1 of the Plaza Order is not narrowly tailored to serve the interests of maintaining public safety and the efficient functioning of the court.

c. “Leave Open Ample Alternative Channels of Communication”

Given the foregoing finding, inquiry into the alternative channels of communication is unnecessary. 7 The Court accordingly holds that Plaintiffs are likely to succeed in defeating at least Paragraph 1 of the Plaza Order under the strict scrutiny test applied to public forums.

————
7 The Court nonetheless notes Plaintiffs’ argument at the preliminary injunction hearing that their advocacy requires person-to-person contact because the concept of jury nullification is obscure and does not lend itself well to pithy slogans that can easily be chanted or placed on a placard (and therefore understood from a distance). Plaintiffs’ counsel could not cite this Court to any authority holding that those wishing to advocate complicated or lesser understood concepts receive more solicitude than others when it comes to available channels of communication. To the contrary, the case law suggests that the government can more easily restrict person-to-person interaction because of its potential for harassment. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773–74 (1994). The Court need not resolve the issue at this time, but only raises it as a matter of potential concern as this case progresses.
————

?C. Irreparable Injury

“[T]he 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). Moreover, the Second Judicial District offers no response to Plaintiffs’ irreparable injury argument. Accordingly, the Court finds that Plaintiffs will be irreparably injured absent a preliminary injunction.
?
D. Balancing of Interests

The injury to a plaintiff deprived of his or her 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). And again, the Second Judicial District offers no response to Plaintiffs’ argument that the balance of interests tips in their favor. Accordingly, the Court finds that the balance indeed tips in Plaintiffs’ favor, although the Court will issue the narrowest injunction possible so that the Second Judicial District is not unduly restrained in its ability to maintain safety and proper judicial functioning. (See Part III.F, infra.)?

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. The Second Judicial District does not argue otherwise. The Court therefore finds that a narrowly drawn injunction would be in the public interest.

?F. Scope of Injunctive Relief

The Court will enter a preliminary injunction in favor of Plaintiffs. However, the Court will not grant an injunction as broad as Plaintiffs’ counsel requested at the preliminary injunction hearing. Plaintiffs’ counsel requested an injunction stating that their message and form of advocacy is protected speech, supposedly to protect against any other government agency that might try to silence them. But the Court cannot say (on this record at least) that Plaintiffs’ message and form of advocacy is always protected speech under all circumstances. In addition, an injunction must run against a party—this Court cannot enter an injunction against the world at large. See, e.g., Fed. R. Civ. P. 65(d)(2) (describing persons bound by an injunction). If Plaintiffs believe that a particular government agency is likely to attempt to silence them, they need to join that agency as a party and satisfy the preliminary injunction as against that agency. 8

Further, although Plaintiffs apparently seek to strike down the entire Plaza Order as unconstitutional, the Court will limit its injunction only to certain portions of the Plaza Order. As counsel for the Second Judicial District pointed out at the preliminary injunction hearing, the Plaza Order applies both inside and outside the Courthouse, but Plaintiffs have only challenged its restrictions outside the Courthouse. Accordingly, the Court will not disturb the Plaza Order as it operates inside the Courthouse.

In addition, the Court notes the Landscaping and Gravel Area in the East Restricted Area. Although no party discussed the scope of a potential injunction in these specific areas, the Court assumes for present purposes that Denver did not intend its public forum stipulation to authorize Plaintiffs to tramp through the Landscaping or the Gravel Area, both of which are ultimately designed for the Courthouse’s security. The Court therefore will not enjoin the operation of the Plaza Order as it applies to the Landscaping and Gravel Area.

The Court also notes that Plaintiffs have specifically alleged their intent to distribute and discuss the two pamphlets attached to their original complaint, “Fresh Air for Justice” (ECF No. 1-3) and “Your Jury Rights: True or False?” (ECF No. 1-4). At the preliminary injunction hearing, counsel for Plaintiffs reemphasized that these two pamphlets form the basis of what they wish to discuss. The Court will therefore limit its injunction to distribution of those specific pamphlets and oral advocacy of the message contained in those pamphlets.

Finally, only Paragraph 1 of the Plaza Order is truly at issue here. Plaintiffs have not challenged the Second Judicial District’s authority to prevent obstruction of the entryways (Paragraph 2), to prohibit the erection of structures (Paragraph 3), or to restrict sound amplification equipment (Paragraph 4). Thus, the Court will limit the injunction to Paragraph 1 of the Plaza Order. 9

————
8 Plaintiffs’ counsel expressed some concern that the Denver District Attorney’s office had been involved in the arrest of Brandt and Iannicelli and that the DA’s office might continue to pursue similar prosecutions. But Plaintiffs have not joined the DA’s office as a party, and in any event, in light of Denver’s stipulation with Plaintiffs, it is questionable whether the Denver Police Department would execute any arrest warrant based on Plaintiffs’ activities.

9 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 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). The Second Judicial District has not put forth any evidence of a likelihood of harm, nor has it argued that Plaintiffs should be required to post a bond. Having considered the issue sua sponte, the Court determines that a bond is unnecessary in light of the lack of likely harm to the Second Judicial District, and in light of the nature of the case. Cf. 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2015 update) (citing public rights cases where the bond was excused or significantly reduced).
————

IV. CONCLUSION

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

1. Plaintiffs’ and Denver’s Stipulation (ECF No. 23) is ACCEPTED and shall be treated as if an order from this Court; ?

2. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED; and ?

3. The City and County of Denver, its police chief, Robert C. White, in his official capacity, and the Second Judicial District (including their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with any of them) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows (all capitalized terms bear the respective meanings assigned above): ?

a. Save for any Plaintiff physically located on the Landscaping or Gravel Area, Defendants shall not enforce Paragraph 1 of the Plaza Order against any Plaintiff (including any FIJA member) physically located in the Restricted Area to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in the pamphlets titled “Fresh Air for Justice” and/or “Your Jury Rights: True or False?”

b. To the extent consistent with the foregoing prohibition, Defendants remain free to enforce Paragraphs 2–4 of the Plaza Order.

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

Cleveland cops only cared that Tunick’s 100 naked women were not marching.


The Spencer Tunick naked women photo-op at the Cleveland RNC provided an interesting spectacle. One hundred nude women aimed large mirrors at the convention center to shine light on the retrograde sexism of the GOP. They also might have stroked Donald Trump’s ego with a news headline he’s sure to have appreciated: A HUNDRED NAKED WOMEN GREET TRUMP AT THE RNC. Leave it to the press to mistake petitioners for groupies. What happened next also illuminated exactly what’s wrong with orchestrated protest. Nothing. Nothing wrong.

Tunick sweated about getting arrested for his per-usual photo project “Everything She Says Means Everything.” He’d gotten permission from the property owners, and his mass nudity installations are not misunderstood to be gatherings of sex offenders, but the RNC cops did show up. Their visit shed light on the very element Tunick was missing.

Esquire Magazine described the brief artist v. officer cultural exchange:

As soon as the women get into place, a van pulls up with four cops. The driver says to one of Tunick’s assistants: “What’s going on here? I just wanted to make sure there was no marching. There’s not going to be any marching in my area.” Then, they shake hands, and he drives off.

There’s not going to be any marching in my area says a cop untrusted to shut down unpermitted protest. Because dissent was envisioned to get out of hand, the city of Cleveland decided to abridge it. My area, the cop bragged. What a shame no one had the clothes to challenge him.

Naked masses of people express what again? The philosophy escapes me. Naked supplicants remind me of how the ancient Greeks forbade their slaves to wear clothes lest they conceal themselves as citizens. Apropos to today’s nudes, Greek and Roman slaves were also shorn. Military detainees in modern times are still stripped to prevent their escape. By definition, naked people wield nothing. To uphold inequity, indeed to maximize inequity, leave the poor nothing.

To a middle class steeped in materialism, perhaps Spencer Tunic’s nudescapes commodify communal being-ness. I can’t help but think their sensationalization appeals to the prurient. To non-Americans this is FEMEN activism stripped to nudity.

Tunic’s remote “she says” transmission to the RNC, an aerial photobomb deploying no boots on the ground, there, recalls the fairytale emperor whose imaginary attire was woven of a similar lack of substance.

Ray Lyall Denver homeless man loses home in legal battle over tiny houses


DENVER, COLORADO- Ray Lyall was among nine homeless rights advocates arrested last October trying to defend a row of Tiny House model homes they built on public land administrated by the Denver Housing Authority. All were accused of trespass and today was Ray’s day in court before a jury of not quite his peers. Though the jury perceived Ray’s act to be political and were shown the paradox facing the city’s homeless, they found in favor of DHA and its SWAT eviction team. Denver’s lack of sympathy for the homeless is shared by Denver residents serving jury duty. All of whom were conscripted through addresses, many of them gentrified.

Like his co-defendant DJ Razee, the first of Ray’s colleagues to take a stand in court, Ray was found guilty of trespass.

Instead of jail time Ray was sentenced to twelve months probation, forty hours of community service, and a protection order to stay clear of DHA stooge Ryan Tobin. Ray also has to write a letter of apology stating that he understands trespass is not an acceptable protest act. Most significant however is an area restriction. Ray can’t return to the area bordered by Arapahoe and Lawrence, 25th and 26th, the block where Denver Homeless Out Loud erected “Resurrection Village”.

If the tiny houses were demolished the night of the police raid, and the vacant lot has been locked ever since, what does Ray’s area restriction matter?

The where to which Ray cannot return is under the tree he and DHOL’s real-life homeless members have called home before and since, a tree along the sidewalk of the DHA property, outside the fence but now inside Ray’s area restriction, where Ray & co. never bothered anyone, though maybe they troubled Ryan Tobin’s view, which is what prompted the heartless crackdown in the first place.

Ryan Tobin is not just DHA’s manager, he owns a $650,000 gentrified home across the street from the restricted lot. While urban “housing authority” entities purport to supply all income residences, they profit by redistributing properties to developers and relocating low income communities to the lesser desirable areas.

Denver inaugurated Spring 2016 with homeless sweeps to clear the gentrified neighborhood of its street dwellers. Where police can’t harass for “encumbrances” to move homeless along, they prosecute with “trespass”.

Each of the DHOL defendants who’ve reached trial or have taken plea deals have been given the area restriction. Restricted from a fenced lot surounded by no trespass signs. The legal overkill recalls the army of police officers deployed to assault DHOL and their tiny homes.

Ray isn’t going to jail but now he really has nowhere to go. Ray was houseless, a distinction that’s not just a technicality. Now Ray is homeless.

Denver art student informs Tale of Two Hoodies with Goya’s Third of May 1808. This KKK cop executes the black child.

A Tale of Two Hoodies
DENVER, COLORADO- Here’s what the Denver Post article didn’t explain about the Denver high school art student who was pressured to remove her controversial piece from public display. Where was it being shown? At the Wellington Webb Building. That’s not irrelevant because it’s where viewers became offended. You could go inquire about the incident, if you knew where to ask, or where to protest the work’s removal. The WELLINGTON WEBB BUILDING downtown on Colfax. What’s so controversial, the scene is real isn’t it? There’s more.

The student’s drawing is essentially a reproduction of Michael D’Antuono’s 2014 piece “A Tale of Two Hoodies” which still sparks outrage. Missing in this version is the bag of Skittles which the black child offers the cop, locking the two figures in a standoff. Or obviously a mugging. The Skittles of course recalls Trayvon Martin and we know how that ended. The hands in the air references “Hands Up Don’t Shoot” and Michael Brown who shared the same fate.

Original 2014 workAll else about the Denver student’s contextualization of D’Antuono’s work is the same, the confederate flag uncovered from beneath the wallpaper of Old Glory. In the student’s piece the American flag appears worn through. In D’Ontuono’s original the racist flag has bursted through. The cop and hood are the same, except in the original the cop was maybe more fat.

What’s also missing in the DenPo whitewash is the context of the unamed student’s assignment. She was tasked with contextualizing TWO works. The influence of the second piece is not as apparent as the first. The boy’s hands-up wasn’t merely recalling the mantra of the Black Lives Matter movement, it was evoking the student’s other chosen influence, Goya’s famous “The Third of May 1808.” In that iconic work, a firing squad is executing a rebel with outstretched arms.

KNOWING THIS, you can see the student’s policeman has drawn his gun for an EXECUTION, not an arrest. The boy is not following an order or raising his hands in surrender. If even in resignation, this boy’s upheld arms communicate a plea. How does that inform you about this young Denver student’s understanding of “Hands Up Don’t Shoot” or “I Can’t Breathe”?

The officer’s Klan hood certifies that this shooting is a lynching. Many lynchings in the traditional sense were perpetrated by deputized citizens.

Denver Chief of Police Robert White said of the student’s work: “I’m greatly concerned about how this painting portrays the police.” Well sure, and Chief White didn’t know the half of it.

Should you go complain at the Wellington Webb Building? The Denpo article mentions Chief White intends to “have a conversation with the student and her parents.” You may want to caution that the Office of the Independent Monitor be invited attend that conversation, as a ride-along so to speak, to assure it isn’t the one-sided transaction to which we are becoming accostomed and inured.

Does Chief White think that racially enhanced officer involved extrajudicial executions should not be a student’s concern? He needs to look past what offended him and try to understand the art piece before he forces a conversation. Or what kind of conversation will it be. The student has already made her statement.

FOOTNOTE:
Here’s what Michael D’Antuono had to say about his original work. I’ve updated the original broken links:

This painting, created during the Trayvon Martin case, symbolizes the travesty of racism in the criminal justice system. It has been the object of much controversy and censorship. In 2014, I was Incensed that George Zimmerman was trying to profit from his notoriety for killing an unarmed teenager by auctioning his painting on eBay. In response, I put this piece on eBay with half of the proceeds going to the Trayvon Martin Foundation. The very same day Zimmerman sold his painting for $100,000, and as soon as it became evident that my piece was on par to pass Zimmerman’s mark, eBay shut mine down for violating their strict policy of not selling anything on their site glorifying hate groups or showing anything symbolic of the Klu Klux Klan. The hypocrisy of eBay was that at the time they killed my auction, they were selling over 1500 other items related to the KKK. Misrepresenting it’s meaning, a hate group co-opted the piece in 2015, passing out flyers in Southfield, Michigan. In 2016, a high school teacher in Nevada, was suspended for using the painting to inspire critical though.

BREAKING: Denver DA Mitch Morrissey to be subpoenaed in jury tampering case of Mark Iannicelli and Eric Brandt!


DENVER, COLORADO- Denver Judge Johnny C. Barajas wouldn’t produce Eric Brandt, who’s still being held in county jail without bond, he wouldn’t commit to joining Brandt’s case with that of Mark Iannicelli, he wouldn’t commit to granting a preliminary hearing, but he has allowed Attorneys David Lane and Lonn Heymann to subpoena all complainants, including Denver District Attorney Mitchell R. Morrissey!
 
The target of a recent recall effort, the Denver DA won’t indict killer cops or sheriff’s deputies, but Morrissey and his cronies in the DPD will have to show up August 31 at 8:30am to account for the abridged First Amendment rights of Messrs Brandt and Ianicelli.

Protect and Serve …Who?


When the police show up at your door dressed like this, I assumed the ‘Protect” means for them not you. They have done a great job of selling America the “Protect and Serve” but do you really need it? In February 1955, the Los Angeles Police Department, through the pages of the internally produced BEAT magazine, conducted a contest for a motto for the police academy. The winning entry was the motto, “To Protect and to Serve” submitted by Officer Joseph S. Dorobek. In my seventy six years of life, I can count on one finger the times I’ve had to call the “Serve and Protect” guys. And that was only at the insistence of my Insurance agent who had refused to pay the claim until the police were notified.

It did not escape my attention, as I explained to my Insurance agent “Why call the police now? the burglars are already gone, along with my stuff. I’m sure most people fail to notice that the police only show up after a crime; Not before, so where then does the “Protect” come into the equation. It should also be noted; to this day, that the police have never caught the burglar or returned any of my stuff.

When I was ten years old, I and some of my friends went to the East-town theater, I saw my first Frankenstein move. That night when my mother told me to go upstairs and go to bed, I refused as I was sure Frankenstein was waiting up there under my bed to get me. I was so scared, I almost shit my pants. In my feverish state of mind, I even thought my mother was conspiring with Frankie so that he could get me. It took me a few years of growing up to figure out, Hollywood was about making movies and money, if they had to scare the shit out of a ten year boy, so be it.

The “Protest and Serve” police join a long list of groups and people who use the fear factors to promote their own agenda for their own benefit. And of course the police can protect you from most of them.

You might recall some of them; The black man is coming to rob you and take your white women, the brown man is coming to take your jobs, the government is coming to take your guns, the IRS is coming to get your money, the devil is coming to get you for sinning, but then of course you can purchase absolution from guess who?

And who among us could ever forget; “Reefer Madness” the propaganda film that was sure to send you out into the streets beginning a career of robbing and raping and those were only two of the milder things that could happen after just one puff. I’m sure the big pharmaceutical companies had much to do with this as they also had their fears of losing their addicted customers.

And of course the police were always there to protect you from all this mayhem and madness, all except the devil and IRS, these areas are covered by your local church and lawyers.

And then we come to the granddaddy of all fears; The “Terrorist” you might remember him? They were that group of rag tag guys we saw on Fox News, swinging on monkey bars somewhere over in Afghanistan. The “Terrorist” were primarily the responsibility of the US army and Geo Bush. But then we discovered some of those “Terrorist” hiding in something called a cell, here in America.

So now we would need to call in the local police departments to protect us. The Army was so appreciative of the police help, they gave much of their equipment to help protect us from this new threat. The police were always there to protect us no matter where that threat might come from.

As we saw on January 26th 2015, when this elite “Protect and Serve” police force, discover a 17 year old unarmed girl sitting in a car, in an alley on the east side of Denver, putting four bullets in her, resulting in her tragic death and suffering of all those who loved her.

It is heartbreaking to look into the eyes of this young woman, Jessica Hernandez and see her as a threat and to think she was murdered by the Denver Police Department with no repercussions to any of her killers. You might think I’m being too hard on the Denver Police Department. Well!

We have all seen those funeral processions as they wind their way to the graveyard escorted by the “Protect and Serve” police. Not quite sure why a deceased person needs protection or what the hurry is to get them in the ground but my question is; Did those same “Protect and Serve” police that murdered this young girl, also escort her hearse to the graveyard? This is just too difficult and emotional to think about.

NE Patriots are serial cheaters, so are their namesakes. The unfair advantage is an essential of Capitalism.

First the New England Patriots got caught spying on their adversaries, now they’ve been tweaking the air-pressure of their game balls to sneak a ballistic handling advantage. Rules be damned, Patriot quarterback Tom Brady prefers his ordnance two pounds psi shy, hollow-points –if you will– which are also against regulation. For how long have the Patriots been manipulating advantages? And how else? They weren’t satisfied with the home field advantage on Sunday. Maybe officials should bring protractors to investigate the Boston gridiron. A level playing field doesn’t likely suit the Patriots either.

OF COURSE it doesn’t. Who expects sportsmanship from “patriots?!” Patriotism is the antisocial insistance on your own cultural superiority. American exceptionalism is an endorsement of tactical superiority, covert war, disproportionate force, drones, extrajudicial assassination, death squads, snipers, collateral damage, and torture. Formal US policy is to FLAUNT international law. American materialism profits from insider trading, extortion, usury, and corporate hegemony uber alles! Why would our surrogate Sunday warriors pretend there is honor among thieves?

Of course America underinflates footballs to best our opponents. We also diligently deploy inspectors to ensure our intended defeatees can’t recallibrate theirs. Meanwhile our leaders dissemble when plausible deniability stretches thin.

Of course NFL officials are not discussing a Super Bowl disqualification for the recidivist Patriots. Instead they’re weighing minor penalties, no doubt manageable, if not tax deductible. If America’s best cheaters don’t advance to the Super Bowl, the outcome would be hypocritical. Go Team! America Fuck Yeah!

I’m kidding of course. Sack the quarterback, disqualify the Patriots, send whoever else to the Super Bowl, then march the entire US defense and offense departments to the Hague.

UPDATE 1/23:
While fans and media try to belittle the scandal (ie. “Deflate-gate” and “Ballghazi”), statisticians have noted a damning anomaly relating to the advantage gained from underinflated footballs. After the rules were changed to allow offensive teams to use their own footballs –Brady was among the quarterbacks lobbying for the change– New England’s ball handling superiority grew beyond the realm of probability.

Probably all teams know that well-inflated footballs fly further but underinflated balls are easier to grab. Maybe the purpose of making a personalized array of game balls available is so offensive teams can exploit alternate characteristics as needed. Maybe the NFL understood this when they granted the rule change. Maybe the Patriots just couldn’t pass up every opportunity to cheat, until the statistics made plain their greed. Whether by hubris or head-injury numbskulledness, Tom Brady and his receivers thought they coud break PT Barnum’s rule too.

The American Dream hinges on equality of opportunity and fair play, but of course Capitalism idealizes the unfair advantage.

Btw I abhor the theatre of corporate sports, but when it exposes the reek of America’s national character, I like to make sure to smell it.

Je suis a manipulated photo, like statue of Saddam toppled by fake Iraqi crowd


HEY! Where are the Parisian masses supposed to have been marching behind the World Leaders?! Media images were cropped to suggest the Euro cabal headed the populist march, but a long shot establishes the illusion to have been a lie. It turns out the forty figureheads held their own parade for Charlie Hebdo in a vast no man’s land of high security. Video footage shows the leaders surrounded by only media, beckened to move hither and forth to simulate an advance, marching in place more or less like a chorus line of marionettes.

The photo-op is disgracefully contrived, the subjects looking cluelessly right and left at imaginary onlookers, waving occasionally at what are probably only government snipers on the rooftop. An audio track records applause generated by a small number of determined clappers, while stage managers bark cadences to prompt the line forward, repeating “Vite, vite, vite” and “Ein, Zwei, Drei.”

The complicity of the international press recalls the iconic toppling of Saddam Hussein’s statue by US marines, flanked by an entourage of Iraqi collaborators made to look like jubulant masses by means of judiciously cropped camera angles, unmasked in the alternative press by under-populated far shots. Even if the leaders’ isolation is dismissed as pragmatic, what does a complicit media tell you about whose agenda is rolling out the JE SUIS CHARLIE offensive?

The impromptu summit had media waxing that Paris at that moment was the “Capitol of the World.” An Anglo-Capitalist Putsch, yes. The march in Paris was a self-congratulatory televised re-declaration of the War On Islam. President Obama’s non-attendance is a red herring, and points to another missed opportunity. Had Obama been any kind of people’s hero he could have sent a drone in his stead to dispatch this Islamophobic assembly like just another Afgan wedding party.

US torture industry defends its murder of Marvin Booker at Denver federal courthouse

Stop whining murderous crybabies
DENVER, COLO- Well, you’ve almost missed the most compelling courtroom drama this side of television. Although even on TV you don’t see a judge having to repeatedly admonish the audience to refrain from reacting with audible incredulity at the clueless ambivalence, awkward dissembling, and brazen lies being told on the stand by sheriff deputies and their witnesses concerning the death of Marvin Booker, 56, in their custody on July 9, 2010. National law enforcement experts have been flown in to defend the Denver Sheriff’s Department policies. It’s been quite a laugh and the jury seems wise to the scheme. Closing arguments begin Friday. If you’ve followed the Denver Post coverage you can skip the next paragraph, but those who’ve been packing the federal courtroom these past three weeks can assure you, you haven’t been treated to the half of it.

Four years ago Marvin Booker, an itinerant African American street preacher who weighed 135 pounds, died under a pileup of Denver Sheriff deputies simultaneously restraining him, kneeling on his prone body, twisting his wrists, contorting his ankles with nunchucks, choking him by the neck, and Tasing him. All of these methods are permitted means of “pain compliance”. Denver County Jail deputies assert they were trying to stop Booker from struggling. Asked one juror: “Could you keep still if you thought you were being killed?”

They held Marvin Booker in a carotid choke hold for two and a half minutes, and tased him for up 27 seconds.

Perhaps you’ve heard about the anomalies. The deputies met afterward to get their stories straight. Surveillance footage is missing, video of inmate witness testimony is missing, the taser is missing! Now everyone’s memory has gone missing too, they even try the excuse in the present. “No I don’t recall seeing myself do that in the video just now.” But most of what may be damning video is gone. The deputies were said to be high-fiving themselves afterward in an area where the camera footage is missing.

The significance of the missing taser means follow-up investigations can conclude its use is unproved. Another taser with a timestamp indicating it was deployed at an event forty minutes later, was fired for eight seconds. The video and inmate witnesses suggest Booker was tased for 27 seconds, but because the first taser surrendered to investigators hadn’t been fired at all, authorities are allowing for the implausible: that Booker wasn’t tased at all.

[work in progress]

Fred Hampton, 1970 Kent State victims weren’t murdered, they were murdered by the state

SO the tail-wagging-dog Twitterverse is aflame with indignation about an Urban Outfitters vintage Kent State University sweatshirt because its stains recall the 1970 bloody attack on antiwar protestors by the Ohio National Guard. As usual, objections of bad taste hinge on the notion that unofficial recollection of the tragedy is disrespectful to the memory of the victims and their families, overlooking that it was official speech stricture that caused the student deaths. How convenient for the state to embrace national tragedies to obscure its murderous role. The memorializing of state murders habitually sheds their context. The term “execution” used to distinguish murders committed by the state, now it encompasses the brutality of point-blank murder, perhaps once a monopoly of the state. Now recalling the “murder” of Fred Hampton for example, and not his execution at the hands of Chicago policemen, truncates accrediting his assassins, as if Hampton was killed by the brutality of his times or the confused racism of law enforcement back then, and not the state. The four students murdered at Kent State were murdered BY THE STATE, by in fact, KENT STATE. Instead of condemning Urban Outfitter’s awkward sweatshirt as obscene, KSU could acknowledge the blood on their logo is INDELIBLE.

The Putin knock-knock joke is easier to find than his Kremlin speech on Crimea

Putin Obama Knock Knock Joke - Crimea RiverThis graphic circulating on the interwebs is a lot easier to find than Vladimir Putin’s March 18 address to the Kremlin about the referendum in Crimea after the Western coup in Ukraine. Bypassing dubious translations excerpted on Capitalist media sites, here is a transcript of his speech direct from the Kremlin. Putin is no hero, but he threatens US-EU banking hegemony, gives asylum to Edward Snowden, and executes zero people with drones.

QUOTING PRESIDENT OF RUSSIA VLADIMIR PUTIN:
Federation Council members, State Duma deputies, good afternoon. Representatives of the Republic of Crimea and Sevastopol are here among us, citizens of Russia, residents of Crimea and Sevastopol!

Dear friends, we have gathered here today in connection with an issue that is of vital, historic significance to all of us. A referendum was held in Crimea on March 16 in full compliance with democratic procedures and international norms.

More than 82 percent of the electorate took part in the vote. Over 96 percent of them spoke out in favour of reuniting with Russia. These numbers speak for themselves.

To understand the reason behind such a choice it is enough to know the history of Crimea and what Russia and Crimea have always meant for each other.

Everything in Crimea speaks of our shared history and pride. This is the location of ancient Khersones, where Prince Vladimir was baptised. His spiritual feat of adopting Orthodoxy predetermined the overall basis of the culture, civilisation and human values that unite the peoples of Russia, Ukraine and Belarus. The graves of Russian soldiers whose bravery brought Crimea into the Russian empire are also in Crimea. This is also Sevastopol – a legendary city with an outstanding history, a fortress that serves as the birthplace of Russia’s Black Sea Fleet. Crimea is Balaklava and Kerch, Malakhov Kurgan and Sapun Ridge. Each one of these places is dear to our hearts, symbolising Russian military glory and outstanding valour.

Crimea is a unique blend of different peoples’ cultures and traditions. This makes it similar to Russia as a whole, where not a single ethnic group has been lost over the centuries. Russians and Ukrainians, Crimean Tatars and people of other ethnic groups have lived side by side in Crimea, retaining their own identity, traditions, languages and faith.

Incidentally, the total population of the Crimean Peninsula today is 2.2 million people, of whom almost 1.5 million are Russians, 350,000 are Ukrainians who predominantly consider Russian their native language, and about 290,000-300,000 are Crimean Tatars, who, as the referendum has shown, also lean towards Russia.

True, there was a time when Crimean Tatars were treated unfairly, just as a number of other peoples in the USSR. There is only one thing I can say here: millions of people of various ethnicities suffered during those repressions, and primarily Russians.

Crimean Tatars returned to their homeland. I believe we should make all the necessary political and legislative decisions to finalise the rehabilitation of Crimean Tatars, restore them in their rights and clear their good name.

We have great respect for people of all the ethnic groups living in Crimea. This is their common home, their motherland, and it would be right – I know the local population supports this – for Crimea to have three equal national languages: Russian, Ukrainian and Tatar.

Colleagues,

In people’s hearts and minds, Crimea has always been an inseparable part of Russia. This firm conviction is based on truth and justice and was passed from generation to generation, over time, under any circumstances, despite all the dramatic changes our country went through during the entire 20th century.

After the revolution, the Bolsheviks, for a number of reasons – may God judge them – added large sections of the historical South of Russia to the Republic of Ukraine. This was done with no consideration for the ethnic make-up of the population, and today these areas form the southeast of Ukraine. Then, in 1954, a decision was made to transfer Crimean Region to Ukraine, along with Sevastopol, despite the fact that it was a federal city. This was the personal initiative of the Communist Party head Nikita Khrushchev. What stood behind this decision of his – a desire to win the support of the Ukrainian political establishment or to atone for the mass repressions of the 1930’s in Ukraine – is for historians to figure out.

What matters now is that this decision was made in clear violation of the constitutional norms that were in place even then. The decision was made behind the scenes. Naturally, in a totalitarian state nobody bothered to ask the citizens of Crimea and Sevastopol. They were faced with the fact. People, of course, wondered why all of a sudden Crimea became part of Ukraine. But on the whole – and we must state this clearly, we all know it – this decision was treated as a formality of sorts because the territory was transferred within the boundaries of a single state. Back then, it was impossible to imagine that Ukraine and Russia may split up and become two separate states. However, this has happened.

Unfortunately, what seemed impossible became a reality. The USSR fell apart. Things developed so swiftly that few people realised how truly dramatic those events and their consequences would be. Many people both in Russia and in Ukraine, as well as in other republics hoped that the Commonwealth of Independent States that was created at the time would become the new common form of statehood. They were told that there would be a single currency, a single economic space, joint armed forces; however, all this remained empty promises, while the big country was gone. It was only when Crimea ended up as part of a different country that Russia realised that it was not simply robbed, it was plundered.

At the same time, we have to admit that by launching the sovereignty parade Russia itself aided in the collapse of the Soviet Union. And as this collapse was legalised, everyone forgot about Crimea and Sevastopol ­– the main base of the Black Sea Fleet. Millions of people went to bed in one country and awoke in different ones, overnight becoming ethnic minorities in former Union republics, while the Russian nation became one of the biggest, if not the biggest ethnic group in the world to be divided by borders.

Now, many years later, I heard residents of Crimea say that back in 1991 they were handed over like a sack of potatoes. This is hard to disagree with. And what about the Russian state? What about Russia? It humbly accepted the situation. This country was going through such hard times then that realistically it was incapable of protecting its interests. However, the people could not reconcile themselves to this outrageous historical injustice. All these years, citizens and many public figures came back to this issue, saying that Crimea is historically Russian land and Sevastopol is a Russian city. Yes, we all knew this in our hearts and minds, but we had to proceed from the existing reality and build our good-neighbourly relations with independent Ukraine on a new basis. Meanwhile, our relations with Ukraine, with the fraternal Ukrainian people have always been and will remain of foremost importance for us.

Today we can speak about it openly, and I would like to share with you some details of the negotiations that took place in the early 2000s. The then President of Ukraine Mr Kuchma asked me to expedite the process of delimiting the Russian-Ukrainian border. At that time, the process was practically at a standstill. Russia seemed to have recognised Crimea as part of Ukraine, but there were no negotiations on delimiting the borders. Despite the complexity of the situation, I immediately issued instructions to Russian government agencies to speed up their work to document the borders, so that everyone had a clear understanding that by agreeing to delimit the border we admitted de facto and de jure that Crimea was Ukrainian territory, thereby closing the issue.

We accommodated Ukraine not only regarding Crimea, but also on such a complicated matter as the maritime boundary in the Sea of Azov and the Kerch Strait. What we proceeded from back then was that good relations with Ukraine matter most for us and they should not fall hostage to deadlock territorial disputes. However, we expected Ukraine to remain our good neighbour, we hoped that Russian citizens and Russian speakers in Ukraine, especially its southeast and Crimea, would live in a friendly, democratic and civilised state that would protect their rights in line with the norms of international law.

However, this is not how the situation developed. Time and time again attempts were made to deprive Russians of their historical memory, even of their language and to subject them to forced assimilation. Moreover, Russians, just as other citizens of Ukraine are suffering from the constant political and state crisis that has been rocking the country for over 20 years.

I understand why Ukrainian people wanted change. They have had enough of the authorities in power during the years of Ukraine’s independence. Presidents, prime ministers and parliamentarians changed, but their attitude to the country and its people remained the same. They milked the country, fought among themselves for power, assets and cash flows and did not care much about the ordinary people. They did not wonder why it was that millions of Ukrainian citizens saw no prospects at home and went to other countries to work as day labourers. I would like to stress this: it was not some Silicon Valley they fled to, but to become day labourers. Last year alone almost 3 million people found such jobs in Russia. According to some sources, in 2013 their earnings in Russia totalled over $20 billion, which is about 12% of Ukraine’s GDP.

I would like to reiterate that I understand those who came out on Maidan with peaceful slogans against corruption, inefficient state management and poverty. The right to peaceful protest, democratic procedures and elections exist for the sole purpose of replacing the authorities that do not satisfy the people. However, those who stood behind the latest events in Ukraine had a different agenda: they were preparing yet another government takeover; they wanted to seize power and would stop short of nothing. They resorted to terror, murder and riots. Nationalists, neo-Nazis, Russophobes and anti-Semites executed this coup. They continue to set the tone in Ukraine to this day.

The new so-called authorities began by introducing a draft law to revise the language policy, which was a direct infringement on the rights of ethnic minorities. However, they were immediately ‘disciplined’ by the foreign sponsors of these so-called politicians. One has to admit that the mentors of these current authorities are smart and know well what such attempts to build a purely Ukrainian state may lead to. The draft law was set aside, but clearly reserved for the future. Hardly any mention is made of this attempt now, probably on the presumption that people have a short memory. Nevertheless, we can all clearly see the intentions of these ideological heirs of Bandera, Hitler’s accomplice during World War II.

It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to. Many government agencies have been taken over by the impostors, but they do not have any control in the country, while they themselves – and I would like to stress this – are often controlled by radicals. In some cases, you need a special permit from the militants on Maidan to meet with certain ministers of the current government. This is not a joke – this is reality.

Those who opposed the coup were immediately threatened with repression. Naturally, the first in line here was Crimea, the Russian-speaking Crimea. In view of this, the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and lives, in preventing the events that were unfolding and are still underway in Kiev, Donetsk, Kharkov and other Ukrainian cities.

Naturally, we could not leave this plea unheeded; we could not abandon Crimea and its residents in distress. This would have been betrayal on our part.

First, we had to help create conditions so that the residents of Crimea for the first time in history were able to peacefully express their free will regarding their own future. However, what do we hear from our colleagues in Western Europe and North America? They say we are violating norms of international law. Firstly, it’s a good thing that they at least remember that there exists such a thing as international law – better late than never.

Secondly, and most importantly – what exactly are we violating? True, the President of the Russian Federation received permission from the Upper House of Parliament to use the Armed Forces in Ukraine. However, strictly speaking, nobody has acted on this permission yet. Russia’s Armed Forces never entered Crimea; they were there already in line with an international agreement. True, we did enhance our forces there; however – this is something I would like everyone to hear and know – we did not exceed the personnel limit of our Armed Forces in Crimea, which is set at 25,000, because there was no need to do so.

Next. As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine used this right, yet the residents of Crimea are denied it. Why is that?

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say.

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues? It turns out that it is the fact that the conflict in Kosovo resulted in so many human casualties. Is this a legal argument? The ruling of the International Court says nothing about this. This is not even double standards; this is amazing, primitive, blunt cynicism. One should not try so crudely to make everything suit their interests, calling the same thing white today and black tomorrow. According to this logic, we have to make sure every conflict leads to human losses.

I will state clearly – if the Crimean local self-defence units had not taken the situation under control, there could have been casualties as well. Fortunately this did not happen. There was not a single armed confrontation in Crimea and no casualties. Why do you think this was so? The answer is simple: because it is very difficult, practically impossible to fight against the will of the people. Here I would like to thank the Ukrainian military – and this is 22,000 fully armed servicemen. I would like to thank those Ukrainian service members who refrained from bloodshed and did not smear their uniforms in blood.

Other thoughts come to mind in this connection. They keep talking of some Russian intervention in Crimea, some sort of aggression. This is strange to hear. I cannot recall a single case in history of an intervention without a single shot being fired and with no human casualties.

Colleagues,

Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades. After the dissolution of bipolarity on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the gun. They have come to believe in their exclusivity and exceptionalism, that they can decide the destinies of the world, that only they can ever be right. They act as they please: here and there, they use force against sovereign states, building coalitions based on the principle “If you are not with us, you are against us.” To make this aggression look legitimate, they force the necessary resolutions from international organisations, and if for some reason this does not work, they simply ignore the UN Security Council and the UN overall.

This happened in Yugoslavia; we remember 1999 very well. It was hard to believe, even seeing it with my own eyes, that at the end of the 20th century, one of Europe’s capitals, Belgrade, was under missile attack for several weeks, and then came the real intervention. Was there a UN Security Council resolution on this matter, allowing for these actions? Nothing of the sort. And then, they hit Afghanistan, Iraq, and frankly violated the UN Security Council resolution on Libya, when instead of imposing the so-called no-fly zone over it they started bombing it too.

There was a whole series of controlled “colour” revolutions. Clearly, the people in those nations, where these events took place, were sick of tyranny and poverty, of their lack of prospects; but these feelings were taken advantage of cynically. Standards were imposed on these nations that did not in any way correspond to their way of life, traditions, or these peoples’ cultures. As a result, instead of democracy and freedom, there was chaos, outbreaks in violence and a series of upheavals. The Arab Spring turned into the Arab Winter.

A similar situation unfolded in Ukraine. In 2004, to push the necessary candidate through at the presidential elections, they thought up some sort of third round that was not stipulated by the law. It was absurd and a mockery of the constitution. And now, they have thrown in an organised and well-equipped army of militants.

We understand what is happening; we understand that these actions were aimed against Ukraine and Russia and against Eurasian integration. And all this while Russia strived to engage in dialogue with our colleagues in the West. We are constantly proposing cooperation on all key issues; we want to strengthen our level of trust and for our relations to be equal, open and fair. But we saw no reciprocal steps.

On the contrary, they have lied to us many times, made decisions behind our backs, placed us before an accomplished fact. This happened with NATO’s expansion to the East, as well as the deployment of military infrastructure at our borders. They kept telling us the same thing: “Well, this does not concern you.” That’s easy to say.

It happened with the deployment of a missile defence system. In spite of all our apprehensions, the project is working and moving forward. It happened with the endless foot-dragging in the talks on visa issues, promises of fair competition and free access to global markets.

Today, we are being threatened with sanctions, but we already experience many limitations, ones that are quite significant for us, our economy and our nation. For example, still during the times of the Cold War, the US and subsequently other nations restricted a large list of technologies and equipment from being sold to the USSR, creating the Coordinating Committee for Multilateral Export Controls list. Today, they have formally been eliminated, but only formally; and in reality, many limitations are still in effect.

In short, we have every reason to assume that the infamous policy of containment, led in the 18th, 19th and 20th centuries, continues today. They are constantly trying to sweep us into a corner because we have an independent position, because we maintain it and because we call things like they are and do not engage in hypocrisy. But there is a limit to everything. And with Ukraine, our western partners have crossed the line, playing the bear and acting irresponsibly and unprofessionally.

After all, they were fully aware that there are millions of Russians living in Ukraine and in Crimea. They must have really lacked political instinct and common sense not to foresee all the consequences of their actions. Russia found itself in a position it could not retreat from. If you compress the spring all the way to its limit, it will snap back hard. You must always remember this.

Today, it is imperative to end this hysteria, to refute the rhetoric of the cold war and to accept the obvious fact: Russia is an independent, active participant in international affairs; like other countries, it has its own national interests that need to be taken into account and respected.

At the same time, we are grateful to all those who understood our actions in Crimea; we are grateful to the people of China, whose leaders have always considered the situation in Ukraine and Crimea taking into account the full historical and political context, and greatly appreciate India’s reserve and objectivity.

Today, I would like to address the people of the United States of America, the people who, since the foundation of their nation and adoption of the Declaration of Independence, have been proud to hold freedom above all else. Isn’t the desire of Crimea’s residents to freely choose their fate such a value? Please understand us.

I believe that the Europeans, first and foremost, the Germans, will also understand me. Let me remind you that in the course of political consultations on the unification of East and West Germany, at the expert, though very high level, some nations that were then and are now Germany’s allies did not support the idea of unification. Our nation, however, unequivocally supported the sincere, unstoppable desire of the Germans for national unity. I am confident that you have not forgotten this, and I expect that the citizens of Germany will also support the aspiration of the Russians, of historical Russia, to restore unity.

I also want to address the people of Ukraine. I sincerely want you to understand us: we do not want to harm you in any way, or to hurt your national feelings. We have always respected the territorial integrity of the Ukrainian state, incidentally, unlike those who sacrificed Ukraine’s unity for their political ambitions. They flaunt slogans about Ukraine’s greatness, but they are the ones who did everything to divide the nation. Today’s civil standoff is entirely on their conscience. I want you to hear me, my dear friends. Do not believe those who want you to fear Russia, shouting that other regions will follow Crimea. We do not want to divide Ukraine; we do not need that. As for Crimea, it was and remains a Russian, Ukrainian, and Crimean-Tatar land.

I repeat, just as it has been for centuries, it will be a home to all the peoples living there. What it will never be and do is follow in Bandera’s footsteps!

Crimea is our common historical legacy and a very important factor in regional stability. And this strategic territory should be part of a strong and stable sovereignty, which today can only be Russian. Otherwise, dear friends (I am addressing both Ukraine and Russia), you and we – the Russians and the Ukrainians – could lose Crimea completely, and that could happen in the near historical perspective. Please think about it.

Let me note too that we have already heard declarations from Kiev about Ukraine soon joining NATO. What would this have meant for Crimea and Sevastopol in the future? It would have meant that NATO’s navy would be right there in this city of Russia’s military glory, and this would create not an illusory but a perfectly real threat to the whole of southern Russia. These are things that could have become reality were it not for the choice the Crimean people made, and I want to say thank you to them for this.

But let me say too that we are not opposed to cooperation with NATO, for this is certainly not the case. For all the internal processes within the organisation, NATO remains a military alliance, and we are against having a military alliance making itself at home right in our backyard or in our historic territory. I simply cannot imagine that we would travel to Sevastopol to visit NATO sailors. Of course, most of them are wonderful guys, but it would be better to have them come and visit us, be our guests, rather than the other way round.

Let me say quite frankly that it pains our hearts to see what is happening in Ukraine at the moment, see the people’s suffering and their uncertainty about how to get through today and what awaits them tomorrow. Our concerns are understandable because we are not simply close neighbours but, as I have said many times already, we are one people. Kiev is the mother of Russian cities. Ancient Rus is our common source and we cannot live without each other.

Let me say one other thing too. Millions of Russians and Russian-speaking people live in Ukraine and will continue to do so. Russia will always defend their interests using political, diplomatic and legal means. But it should be above all in Ukraine’s own interest to ensure that these people’s rights and interests are fully protected. This is the guarantee of Ukraine’s state stability and territorial integrity.

We want to be friends with Ukraine and we want Ukraine to be a strong, sovereign and self-sufficient country. Ukraine is one of our biggest partners after all. We have many joint projects and I believe in their success no matter what the current difficulties. Most importantly, we want peace and harmony to reign in Ukraine, and we are ready to work together with other countries to do everything possible to facilitate and support this. But as I said, only Ukraine’s own people can put their own house in order.

Residents of Crimea and the city of Sevastopol, the whole of Russia admired your courage, dignity and bravery. It was you who decided Crimea’s future. We were closer than ever over these days, supporting each other. These were sincere feelings of solidarity. It is at historic turning points such as these that a nation demonstrates its maturity and strength of spirit. The Russian people showed this maturity and strength through their united support for their compatriots.

Russia’s foreign policy position on this matter drew its firmness from the will of millions of our people, our national unity and the support of our country’s main political and public forces. I want to thank everyone for this patriotic spirit, everyone without exception. Now, we need to continue and maintain this kind of consolidation so as to resolve the tasks our country faces on its road ahead.

Obviously, we will encounter external opposition, but this is a decision that we need to make for ourselves. Are we ready to consistently defend our national interests, or will we forever give in, retreat to who knows where? Some Western politicians are already threatening us with not just sanctions but also the prospect of increasingly serious problems on the domestic front. I would like to know what it is they have in mind exactly: action by a fifth column, this disparate bunch of ‘national traitors’, or are they hoping to put us in a worsening social and economic situation so as to provoke public discontent? We consider such statements irresponsible and clearly aggressive in tone, and we will respond to them accordingly. At the same time, we will never seek confrontation with our partners, whether in the East or the West, but on the contrary, will do everything we can to build civilised and good-neighbourly relations as one is supposed to in the modern world.

Colleagues,

I understand the people of Crimea, who put the question in the clearest possible terms in the referendum: should Crimea be with Ukraine or with Russia? We can be sure in saying that the authorities in Crimea and Sevastopol, the legislative authorities, when they formulated the question, set aside group and political interests and made the people’s fundamental interests alone the cornerstone of their work. The particular historic, population, political and economic circumstances of Crimea would have made any other proposed option – however tempting it could be at the first glance – only temporary and fragile and would have inevitably led to further worsening of the situation there, which would have had disastrous effects on people’s lives. The people of Crimea thus decided to put the question in firm and uncompromising form, with no grey areas. The referendum was fair and transparent, and the people of Crimea clearly and convincingly expressed their will and stated that they want to be with Russia.

Russia will also have to make a difficult decision now, taking into account the various domestic and external considerations. What do people here in Russia think? Here, like in any democratic country, people have different points of view, but I want to make the point that the absolute majority of our people clearly do support what is happening.

The most recent public opinion surveys conducted here in Russia show that 95 percent of people think that Russia should protect the interests of Russians and members of other ethnic groups living in Crimea – 95 percent of our citizens. More than 83 percent think that Russia should do this even if it will complicate our relations with some other countries. A total of 86 percent of our people see Crimea as still being Russian territory and part of our country’s lands. And one particularly important figure, which corresponds exactly with the result in Crimea’s referendum: almost 92 percent of our people support Crimea’s reunification with Russia.

Thus we see that the overwhelming majority of people in Crimea and the absolute majority of the Russian Federation’s people support the reunification of the Republic of Crimea and the city of Sevastopol with Russia.

Now this is a matter for Russia’s own political decision, and any decision here can be based only on the people’s will, because the people is the ultimate source of all authority.

Members of the Federation Council, deputies of the State Duma, citizens of Russia, residents of Crimea and Sevastopol, today, in accordance with the people’s will, I submit to the Federal Assembly a request to consider a Constitutional Law on the creation of two new constituent entities within the Russian Federation: the Republic of Crimea and the city of Sevastopol, and to ratify the treaty on admitting to the Russian Federation Crimea and Sevastopol, which is already ready for signing. I stand assured of your support.

WWII air veterans of Doolittle Raiders celebrate 71 years of bombing civilians

Doolittle nose-art
I read 30 Seconds Over Tokyo when I was still a war-playing kid, before I would understand the mischievous consequences of the Doolittle Raiders B-25 bombers deploying without their bombsights. This was to prevent US war-making advantages falling into enemy hands but it also precluded dropping bombs with accuracy. I’m pretty certain the account for young readers also didn’t explain why over a quarter of the squadron’s bombs were of the incidiary cluster variety. Readers today know what those are for. Doolittle claimed to be targeting military sites in Japan’s capitol, but “invariably” hit civilian areas including four schools and a hospital. Of the American fliers captured, three were tried and executed by the despicable “Japs”, who considered the straffing of civilians to be war crimes. After the war, the US judged the Japanese officers responsible, as if their verdict was a greater injustice against our aviators’ “honest errors”. Today we rationalize our systemic overshoot policy as “collateral damage”.

Every year since WWII, Doolittle’s commandos are feted for their milestone bombing mission. This Veterans Day is to be the last due to their advanced ages. But it is fitting, because isn’t it time Americans faced what we’re celebrating? There’s no denying it took suicidal daring, but the Doolittle Raid inaugurated what became a staple of US warfare, the wholesale terrorizing of civilians from on high, with impunity and indifference. To be fair, the American public has always been kept in the dark. American aircraft have fire-bombed civilians at every diplomatic opportunity since 1942, and a Private Manning sits in the brig for trying to give us a chance to object.

We now know that the Doolittle Raid didn’t turn the tide, nor shake Japanese resolve. It was a retalliation for the attack on Pearl Harbor, intended to boost US morale as if to say, America wasn’t defeated. Kinda like why and how we struck back at Afghanistan after 9/11, just as indiscriminately.

The “Mark Twain” ersatz bombsight
substitute bombsightThe Norden bombsight was a closely guarded US secret weapon. An airstrike without it would today be like lobotomizing so-called smart bombs, and deciding to opt for imprecision bombing. The official army record recounts that a subsitute sighting mechanism was improvised for the raid, dubbed the “Mark Twain” and judged to be effective enough. Now a bad joke. Indochina and Wikileaks-wisened, we know the mendacity of that assessment. The vehemently anti-imperialist, anti-racist Twain would not have been honored.

Twain satirized Western so-called Enlightenment thus: “good to fire villages with, upon occasion”.

Post-postwar hagiographies of the raid have suggested the improvised bombsight was better suited to low-altitude missions than the Norden model. That conclusion is easily dismissed because the device was used only for the Doolittle run and never after. The sight’s designer, mission aviator C. Ross Greening, offered a explanation for why he named the device after Mark Twain in his pothumously published memoir Not As Briefed. He didn’t.

The bombsight is named the “Mark Twain” in reference to the “lead line” depth finder used on the Mississippi River paddle wheelers in bygone days.

Because its design was so simple, we’re left to suppose. Greening’s bombsight was named for the same “mark” which Samuel Langhorne Clemens adopted as his celebrated pen name. I find it disingeneous to pretend to repurpose an archaic expression whose meaning was already eclipsed by the household name of America’s most outspoken anti-imperialist. Who would believe you named your dog “Napoleon” after a French pastry?

We are given another glimpse into Greening’s sense of humor by how he named his plane, the “Hari-Kari-er” ready to deal death by bomb-induced suicide. Greening’s B-25 is the one pictured above, with the angelic tart holding a bomb aloft. Greening’s plane was another that carried only incendiary ordnance.

Much was made of the sight’s two-piece aluminum construction, reportedly costing 20 cents at the time compared to the $10,000 Norden. This provided the jingoist homefront the smug satisfaction perhaps, combining a frugality born of the Depression with the American tradition of racism, that only pennies were expensed and or risked on Japanese lives.

War Crimes
Targeting civilians, taking insufficient care to avoid civilian casualties, using disproportunate force, acts of wanton retaliation, and the use of collective punishment are all prohibited by international convention. They are war crimes for which the US prosecutes adversaries but with which our own military refuses to abide. Americans make much of terrorism, yet remain blind to state terrorism. Doolittle’s historic raid, judged by the objective against which it is celebrated as a success, was an act of deliberate terrorism.

Forcing the Japanese to deploy more of their military assets to protect the mainland sounds like a legitimate strategy, except not by targeting civilians to illustrate the vulnerability, nor by terrorizing the population, one of Doolittle’s stated aims. He called it a “fear complex”.

It was hoped that the damage done would be both material and psychological. Material damage was to be the destruction of specific targets with ensuing confusion and retardation of production. The psychological results, it was hoped, would be the recalling of combat equipment from other theaters for home defense, the development of a fear complex in Japan, improved relationships with our Allies, and a favorable reaction in the American people.

There is no defending Japan’s imperialist expansion in the Pacific, and certainly not its own inhumanity. The Japanese treated fellow Asians with the same racist disregard with which we dispatched Filipinos. While Americans point in horror at how the Japanese retalliated against the Chinese population for the Doolittle Raid, we ignore that Doolittle purposely obscured from where our bombers were launched, leaving China’s coast as the only probably suspect.

To be fair, most of Doolittle’s team was kept in the dark about the mission until they were already deployed. I hardly want to detract from the courage they showed to undertake a project that seemed virtually suicidal. But how long should all of us remain in the dark about the true character of the Doolittle Raid?

Out of deference for the earlier generation of WWII veterans, those in leadership, certain intelligence secrets were kept until thirty years after the war. Unveiled, they paint a very different picture of what transpired. The fact that the US knew the German and Japanese codes from early on revealed an imbalance not previously admitted, as an example.

About the Doolittle Raid, much is already openly documented, if not widely known. The impetus for the raid was public knowledge, the evidence of its intent in full view.

BY DESIGN
In the aftermath of Pearl Harbor, American newspapers were already touting offers of cash rewards for whoever would be the first to strike back at Japan. President Roosevelt expressed a deliberate interest in hitting the Japanese mainland, in particular Tokyo, to retaliate for the Japanese strike against Pearl Harbor, never mind it had been a solely military target.

Plans were made to exploit the Japanese homeland’s vulnerability to fire, as ninety percent of urban structures were made of paper and wood. Writes historian William Bruce Jenson:

In his “confidential” meeting with reporters back in November, Marshall had declared that the US would have no cavil about burning Japan’s paper cities.

For the Doolittle Raid, a bombing strategy was developed to overwhelm the fire department of his target, the Shiba ward.

A former naval attache in Tokyo told Doolittle: “I know that Tokyp fire department very well. Seven big scattered fires would be too much for it to cope with.”

As lead plane, Doolittle’s role was to literally blaze the way. Fellow pilot Richard Joyce told Nebraska History Magazine in 1995:

The lead airplane, which was going to have Doolittle on board as the airplane commander, was going to be loaded with nothing but incendiaries -2.2­ pound thermite incendiaries- in clus­ters. They drop these big clusters and then the straps break and they spray, so they set a whole bunch of fires. He was to be the pathfinder and set a whole bunch of fires in Tokyo for pathfinding purposes.

Doolittle’s report outlined his objective more formally:

one plane was to take off ahead of the others, arrive over Tokyo at dusk and fire the most inflammable part of the city with incendiary bombs. This minimized the overall hazard and assured that the target would be lighted up for following airplanes.

Greening paints the most vivid picture, of burning the Japanese paper houses to light the way:

Doolittle planned to leave a couple of hours early, and in the dark set fire to Tokyo’s Shiba ward … the mission’s basic tactic had been that Doolittle would proceed alone and bomb a flammable section of Tokyo, creating a beacon in the night to help guide following planes to their targets.

Doolittle’s copilot Lt Richard Cole, told this to interviews in 1957:

Since we had a load of incendiaries, our target was the populated areas of the west and northwest parts of Tokyo.

After the bombers had left on their raid, and before news got back about whether or not they accomplished it, the Navy crew on the carrier USS Hornet already sang this song, which went in part:

Little did Hiro think that night
The skies above Tokyo would be alight
With the fires that Jimmy started in Tokyo’s dives
To guide to their targets the B-25s.
When all of a sudden from out of the skies
Came a basket of eggs for the little slant eyes

Incendiaries

Most of the bombers were loaded with three demolition bombs and an incendiary cluster bomb. Some of the planes carried only incendiaries. According to Doolittle’s official report of the raid, here were some of their stated objectives:

Plane no. 40-2270, piloted by Lt. Robert Gray:
thickly populated small factories district. … Fourth scattered incendiary over the correct area

Plane No. 40-2250, Lt. Richard Joyce:
Incendiary cluster dropped over thickly populated and dense industrial residential sector immediately inshore from primary target. (Shiba Ward)

“The third dem. bomb and the incendiary were dropped in the heavy industrial and residential section in the Shiba Ward 1/4 of a mile in shore from the bay and my tat.”

Aircraft 40-2303, Lt Harold Watson:
the congested industrial districts near the railroad station south of the Imperial Palace

AC 40-2283, David Jones:
the congested area Southeast of the Imperial Palace

Even though the planned night raid became a daytime mission, Doolittle did not alter his original role, intended to light the way for the following planes. His target remained the Shiba District of Tokyo. His own plane: “changed course to the southwest and incendiary-bombed highly inflammable section.”

Doolittle’s report included a description of the incendiary bombs:

The Chemical Warfare Service provided special 500 incendiary clusters each containing 128 incendiary bombs. These clusters were developed at the Edgewood Arsenal and test dropped by the Air Corps test group at Aberdeen. Several tests were carried on to assure their proper functioning and to determine the dropping angle and dispersion. Experimental work on and production of these clusters was carried on most efficiently.

As has become an aerial bombardment tradition, crews were let to inscribe messages on the bombs about to be dropped. Accounts made the most of these chestnuts: “You’ll get a BANG out of this.” And “I don’t want to set the world on fire –only Tokyo.”

These details, which reveal the intentions of the raid, were not made known to the public immediately. The Doolittle Raid was planned and executed in secret, with US government and military spokesmen denying knowledge of the operation even in its aftermath. The first word to reach the American public came from the New York Times, citing Japanese sources:

Enemy bombers appeared over Tokyo for the first time in the current war, inflicting damage on schools and hospitals. Invading planes failed to cause and damage on military establishments, although casualties in the schools and hospitals were as yet unknown. This inhuman attack on these cultural establishments and on residential districts is causing widespread indignation among the populace.

This report was dismissed as propaganda. When Japan declared its intention to charge the airman it had taken captive with war crimes, the US protestations redoubled. The accusations were belittled even as our own reports conceded to the possibilities.

Lieutenant Dawson’s Thirty Seconds Over Tokyo was the first published account of the raid. Printed less than a year after the event, wartime-sensitive details such as the phony guns made of broomstick handles poking out the back were left out. Targets were also not specified, but a candor remained, probably intended to be threatening. Lawson described the 500-pound incendiaries as “something like the old Russian Molotov Breadbasket”, and related US naval attache Jurika’s advice:

“If you can start seven good fires in Tokyo, they’ll never put them out,” Jurika promised us. … “I wouldn’t worry too much about setting fires in flimsy-looking sections of Tokyo,” he said. “The Japanese have done an amazing job of spreading out some of their industries, instead of concentrating them in large buildings. There’s probably a small machine shop under half of these fragile-looking roofs.”

“Flimsy” became Lawson’s keyword for the residential areas. Here Lawson described dropping his third and fourth bombs, when he saw their corresponding red light indicators:

The third red light flickered, and, since we were now over a flimsy area in the southern part of the city, the fourth light blinked. That was the incendiary, which I knew would separate as soon as it hit the wind and that dozens of small fire bombs would molt from it.

I was satisfied about the steel-smelter and hoped the other bombs had done as well. There was no way of telling, but I was positive that Tokyo could have been damaged that day with a rock.

Our actual bombing operation, from the time the first one went until the dive, consumed not more than thirty seconds.

Thus: Chance of hitting civilian homes: 50/50.
Charges of Excessive Force could be expected, because
blame the victim for being weaker than: a rock.
Care taken to avoid innocent casualties: 30 seconds.

In a later afterword, Lawson blamed Tokyo for having insufficient bomb shelters.

After the war, US occupation forces recovered Japanese records which documented the losses attributed to the Doolittle Raid: fifty dead, 252 wounded, ninety buildings. Besides military or strategic targets, that number included nine electric power buildings, a garment factory, a food storage warehouse, a gas company, two misc factories, six wards of Nagoya 2nd Temporary Army Hospital, six elementary or secondary schools, and “innumerable nonmilitary residences”.

Strafing
Japan accused the fliers of indescriminate strafing civilians. The US countered that defending fighters were responsible for stray bullets when their gunfire missed the bombers. That’s very likely, except the raiders were candid about their strafing too. Lawson:

I nosed down a railroad track on the outskirts of the city and passed a locomotive close enough to see the surprised face of the engineer. As I went by I could have kicked myself for not giving the locomotive’s boiler a burst of our forward 30-calibre guns, then I remembered that we might have better use for the ammunition.

A big yacht loomed up ahead of us and, figuring it must be armed, I told Thatcher to give it a burst. We went over it, lifted our nose to put the tail down and Thatcher sprayed its deck with our 50-calibre stingers.

Greening’s account of firing on a sailor, raises the moral ambiguity of air warfare with which few airmen grapple. By virtue that technology allows it, combatants become slave to a predetermined outcome:

When we attacked the next patrol boat, a Japanese sailor threw his hands up as if to surrender. I guess he expected us to stop and take him prisoner. We shot him and left this boat smoking too.

The Medals
Friendship Medals exchanged between Japan and the US found themselves requisitioned for Doolittle’s Raid:

Several years prior to the war, medals of friendship and good relationship were awarded to several people of the United States by the Japanese government.  In substance these medals were symbolic of the friendship and cooperation between the nations and were to represent the duration of this attitude.  It was decided by the Secretary of the Navy, Mr. Frank Knox, that the time was appropriate to have these medals returned.  They had been awarded to Mr. Daniel J. Quigley, Mr. John D. Laurey, Mr. H. Vormstein and Lt. Stephen Jurkis.

After arrangements had been made and the medals secured, a ceremony was held on the deck of the Hornet during which the medals were wired to a 500 lb. bomb to be carried by Lt. Ted Lawson and returned to the Japanese government in an appropriate fashion.

Lawson’s plane no 40-2261 dropped that bomb on an “industrial section of Tokyo” omitting to mention that Japan’s industry was still a post-feudal cottage industry.

“The medals were subsequently delivered in small pieces to their donors in Tokyo by Lt. Ted Lawson at about noon, Saturday, April 18, 1942.”

–Mitscher, M.A. Letter Report to Commander Pacific Fleet.

“Through the courtesy of the War Department your Japanese medal and similar medals, turned in for shipment, were returned to His Royal Highness, The Emperor of Japan on April 18, 1942.”

–Knox, F. Letter Report to Mr. H. Vormstein

Springs Democrats hope democracy loses to State Senator John Morse

COLORADO SPRINGS, CO- International news headlines read “G-20 Summit Overshadowed by Syrian Crisis” but not in Colorado Springs! Here every politically active Democrat was working to defeat a recall of state senate leader John Morse, a democrat though barely. Morse is a duly elected, if unlikely, representative of conservative El Paso County, being assailed by a mutinous GOP majority angered by his stewarding of gun control legislation. The NRA has backed a blitzkrieg recall campaign, aided by local Republican officials and judges who connived election parameters designed to coax a recall victory. But who’s on the side of right, presumably with the people?

Democrats are crying foul. They’re cursing corporate money and lobbyist-villain NRA, complaining that recalls shouldn’t be motivated by ideological reasons. Really? Are recalls only for impropriety? I’d prefer corruption be answered with criminal charges, and scandal should produce resignations. I’d say ideology would be the most appropriate reason for a recall, especially if it’s about a difference of opinion about the idea of representational government.

Ironically, the underdog’s usual complaint is that incumbents are always impossible to unseat, even when they act in total defiance of their constituents. Don’t you hate that? The irony is compounded because no one will deny that the overwhelming majority in these neighborhoods oppose any abridgement of the Second Amendment right to wave guns. Senator Morse acted in defiance of that interest. Undemocratic, is what he was, as his critics accuse.

We like to vilify the NRA as the worst of special interest lobbies, but one can’t accuse them of being corporate, they’re famously supported by members! The NRA is probably the single MOST democratic of lobbying outfits. The fact that the corporate media loves to demonize the NRA should give one pause about who’s looking after who.

What’s very odd is that the NRA-backed Republicans are targeting a term-limited Democrat who has only a year left in office. What’s that about? Pundits speculate that an NRA win would be symbolic, so it’s worth the money they’re spending. Maybe. It certainly will reinforce the corporate narrative that legislators daren’t cross the NRA. How convenient.

But the recall campaign, a national story now, is not so mysterious if you think about the Kabuki nature of our two party theater. The defense campaign contrived for Senator Morse is a disquietingly artificial shade for grassroots. Against “People Against Morse” the Democrats countered with: “A Whole Lot of People For Morse”, which is certainly a catchy slogan for a politician looking to highten his visibility for a run at a next office, but for locals it lacks the ring of authenticity. What viewers outside the area don’t know is that John Morse has been a superlatively minor functionary, with a reputation for backstabbing more than leading, and certainly no one to bother defending or applauding, even if his name came up, which it rarely did.

Before this recall, people hadn’t cared enough to even think about John Morse, except to spout the usual lesser of evils rap, when there is consensus, it’s that Morse isn’t the creepiest person they knew, depending on who you asked. Now the louse has “a whole lot of people” behind him, how odd. That’s a whole lot of people who don’t care that Morse misrepresented his district, who don’t care that he’s been a war-monger right-of-center pro-industry shill. Because he’s of their party, Democrats want to propel Morse upward. And this is how malignant anti-democratic corporate bureaucrats roll into power.

To judge by the press, and the surge of effort to combat the recall effort, it appears John Morse does have “a whole lot” of support. Propaganda and amnesia.

If the recall succeeds, Americans will be shown that money does influence elections and special interest groups are adversaries to be feared. Sounds like an honest lesson. If the recall succeeds, the displeasure of the gun-loving voters of Colorado Springs will have been heard. If the recall fails, you’ll have Democrats unironically cheering against what Democracy is supposed to look like. In either event, John Morse comes out looking like somebody likes him, and that’s a step in the wrong direction for those of us without a political machine.

Rogue vigilante Chris Dorner burned at the stake by angry hooded white men

Tuning in to developments with fugitive cop-killer Chris Dorner in Big Bear on Tuesday, I half expected a televised denouement like Fahrenheit 451, where impatient viewers were given a contrived final scene, fitting the short arc of the average attention span for corporate media fodder. As I recall, that renegade fireman watched his pursuers stage his capture/demise, because authorities favored truncating a felon-on-the-lam narrative lest it generate a deviant hopeful following; it didn’t matter if the criminal really escaped. Could Ray Bradbury have envisioned the expectations which reality TV has created to satiate real blood lust?

No doubt Bradbury foresaw the ferocity with which a vengeful police state would immolate their one-man insurgent, with a compliant media averting their cameras so American viewers didn’t witness another Waco.

Americans should be attuned to these out of sight infernos, all our wars for example. Except that we know Dorner was set aflame with an paramilitary incendiary device dubbed “the burner”, this is what our extrajudicial executions look like via drones. Only last week news junkies were treated to the legal argument which the USG made to justify killing untried suspects, even US citizens. A if international law differentiated among infidels. One man’s infidel may be another’s exemplar, but he’s every government’s infidel.

So Chris Dorner had snapped. His manifesto, rambling only as much as those were his parting words, Dorner a Falling Down avenger who knew there would be no Hollywood ending. But Dorner had bought into the Rambo Army-of-One mythology. No disrespect intended toward Dorner’s feat, but elite military training proved more of a dud than a fighting machine, did it? What a laugh that American forces deign to train Afghan recruits. Any one mujahideen is likely the equivalent of a high-capacity magazine clip of US special forces in their underwear. But it’s likely authorities will never reveal Dorner’s actual superhuman achievement. He knew what he was up against, and now so do we. The crooked police machine has proven to be worse than Dorner’s complaints. Perhaps that was meant to be the audience takeaway. We didn’t get to see Chris Dorner burn at the stake, but we sure as hell felt the heat.

Steve Bass found guilty of camping not occupying, but could jury have ruled otherwise without hearing his defense?


COLORADO SPRINGS, Colo.– You may have underestimated the importance of today’s Camping Ban trial. The local media, social justice community and rights watchdogs missed it. But judging from the police force on hand and the elaborate lock-downs placed on the jury pools, it was evident the City of Colorado Springs thought a lot was at stake. I’ve written already about the draconian motions to prevent defendant Steve Bass from explaining his motives, including a ban of the word “Occupy.” Today the court made audience members remove their “Occupy Colorado Springs” t-shirts, but let the cat out of the bag by the palpable gravitas with which the court officials and police handled jury selection. Except for the absence of TV crews outside, you’d have thought Steve Bass was Hannibal Lector tripped up by an urban camping ordinance at “what happened last year in October at a park downtown.”

Yeah, even mention of “Acacia Park” was giving away too much, the prosecuting attorney preferred to call it “115 W. Platte Ave.” Every so often a prospective juror would stand up and say “I presume you’re referring to OCCUPY WALL STREET?” like he was solving a riddle, but instead of the door prize that volunteer would be dismissed from the pool for knowing too much.

After a trial that lasted one third the length of the jury selection, Steve Bass was found guilty. He offered no testimony, his lawyer, the very capable Patty Perelo, made no closing statement, because what defense could be made? Steve and his council elected not to have him testify, because to begin with, he’d have to swear to tell the whole truth, and if he explained he could only tell part of the truth, he’d be slapped with Contempt of Court.

We thought the jurors might have been curious, after seeing the city’s 8×10 glossy pictures with the circles and arrows telling what each one was and hearing not a peep from Bass, but they didn’t express it, and left after giving their verdict. This is Colorado Springs.

One of the prosecution’s witnesses, the arresting officer, nearly spilled the beans when he identified the defendant as someone he couldn’t have confused for someone else, because he’d said he’d encountered Bass many times in the park and shared many conversations.

“Oh?” the defense attorney Perelo perked her ears and asked, “and WHAT did you talk about?”

“Um… homeless policy, mostly.” That’s all HE could say. He couldn’t explain why he’d encountered the defendant so many times, or what the defendant was doing. Attorney Perelo couldn’t push it, because that would be leading him into forbidden territory. His testimony for the prosecutor was delivered straight from his notes.

There were two police witnesses, a map and several photographs, showing the tent and another showing just the poles. Was this necessary for a conviction? Because it necessitated explaining to the jury that said poles were in their “unerected state”. Not to be confused with the tent which was “fully erected”, which the judge pronounced like expressions which tripped off the tongue in cases of serious crime.

A photo of two sleeping bags required the officer to say he found the defendant sleeping “in the bags in the tent in the park” to prove all the elements of a violation of the camping ban.

The prosecuting attorney summarized it thus: “there was a tent, there was a sleeping bag, looks like camping to me.”

Not according to a dictionary definition of course. But that too had been motioned inadmissible. If you look it up, camping is variously defined as to “Live for a time in a camp, tent, or camper, as when on vacation.” Or as when destitute? Dictionaries don’t go there. That’s more like sheltering.

A couple of other examples: Soldiers sleep in tents. They’re not camping. Mountaineers overnighting on the side of a mountain aren’t camping. Refugees of war and natural disasters stay in refuge camps, but aren’t said to be camping. Anyway.

Steve Bass didn’t get his day in court. Everything he wanted to say he couldn’t. His attorney’s strategy today was to prepare for an appeal, on the grounds that the judge deprived Bass of the ability to defend himself.

Did Bass violate the camping ban as the jury decided? The prosecutor explained that nobody, not the judge, nor police officers or herself or the jury was in the position to decide the law. So Steve Bass has to take his case to someone who can.

Jury Selection
Over four hours were spent on choosing a jury, by far the most interesting part of the day. It took three sets of 25 potential jurors to pick six and one alternate. As the process approached lunch hour, the court was eager to buy pizza for seven instead of twenty five, but they didn’t make it.

As I mentioned, usually a juror familiar with “Occupy Wall Street” was dismissed, whether their opinions were favorable or unfavorable. I saw one juror dismissed because delving further would have meant discussing Occupy too much and would expose the other jurors to more occupy talk than the judge or prosecutor wanted.

On the other hand, many jurors had direct relatives in law enforcement, one juror considered a CSPD officer her “knight in shining armor,” so that was another cause for eliminations.

During the second batch, another juror stood up to say he was a former corrections officer, who wasn’t sure if he might have met Steve Bass “in the course of his duties” which poisoned the entire group by suggesting Steve had spent time in prison. That batch was dismissed. In actuality, Steve recognized him, because they both frequented the Dulcimer Shop.

Though Judge Williams maintained a convivial air of impartiality, he betrayed an awful prejudice. Whenever a juror expressed knowing something of what was in the news in October 2011, the judge would asked them if they could refrain from judging Bass based on the misbehavior of others. If jurors who knew about the protests were let to remain in the running, the assumption the judge offered was that “Occupy” was a taint that the defendant hoped they would overcome.

I don’t doubt that this slant extends well beyond Occupy, because municipal courts are notorious for being rubber stamps of a city’s citation process.

For example, in Judge Williams’ instructions to the jury, he read the sample guilty verdict first, in all its solemnity. When he read the not-guilty sample, he broke character to explain that he was not going to repeat the redundant stuff, etc, etc, and then he told the jury they shouldn’t be swayed by the order in which the two samples were read. The dramatic guilty versus the blah blah not-guilty.

Occupy harassment
Knowing about the prohibition against Steve mentioning Occupy, we thought we’d exercise our right not to be gagged. Could it matter? Should it? How preposterous that Steve was being tried and not permitted to say what he was doing. As if some precedent would be set that a defendant might convince a jury that forbidding a person shelter was a bad law.

So we came to court with t-shirts that read OCCUPY COLORADO SPRINGS. Immediately when we sat down, the judge called the lawyers up and decided we’d have to remove our shirts. We were given a chance to explain who we were, but the choice was invert the shirts, put on new ones, or leave. So we walked out.

I had an extra shirt outside with a peace symbol on it. Admittedly a politically-charged shirt, somewhat iconic locally, because it recalled an event in 2007 when peaceful protesters were forcibly removed from a city parade, one of them dragged across the pavement, an elderly woman who subsequently died of complications. So I knew I might be pushing it.

The point being to give Defendant Bass some context. He’s an activist. Alone without a voice he was a perp. With an audience of protestors he becomes a man of mystery. Every accused person in court is sized up in part based on his relations sitting behind him. Why shouldn’t Steve be allowed to show who his friends are?

As I reemerged from my car, already a police supervisor was yelling across the street to tell me I wouldn’t be allowed to wear that shirt. “Are you kidding?” I asked. I had a bag full of them, prepared for this eventuality if other spectators wanted to show solidarity. He was crossing the street to preempt my bringing the confrontation to the steps of the courthouse.

“Eric, you know the judge won’t let you wear that shirt.”

“I know no such thing. He only forbid things that say Occupy.” I knew this to be true, technically.

But they weren’t budging, they claimed a jury pool was already in the courtroom and they didn’t want to take any chances. Oddly, the officer blocking my way, beside the supervisor, was Good Old Officer Paladino who’d brutalized my friends and me in 2007. So he knew the t-shirt too well. Actually Officer Irwin Paladino’s history of abusing protesters goes back to 2003. I decided to dispense with plan B and invert my black t-shirt so I could go back in.

Did the CSPD make the smart call forbidding my t-shirt? I’ll be the first to admit the CSPD have outwitted the local social justice movement at every turn in Colorado Springs. They’re clever and competent, but they’re in the wrong. The CSPD are stepping on our rights, and overstepping their authority to do it. While it may have been superior gamesmanship, it was wrong.

Have I mentioned that they followed us everywhere? As if we were the accused in need of escort. On the officers’ radios we could hear them narrating our movements throughout the building. When Patrick went to the bathroom, an officer followed him inside and made small talk as Patrick peed. Did they think we were going to Mike Check the men’s room?

At one point we were able to see from a window on the second floor hall that CSPD were conferring with a parking enforcement officer around our cars. She was examining the license plates, getting on her phone, standing by the cars, as if waiting for something. The cars were legally parked, the meters fed, and well within the four hour limit. But who wants to argue with an impound lot? I assure you this intimidation tactic worked very well to send us out of the courthouse to rescue our vehicles.

Meanwhile, another friend came into the courthouse and overheard officers discussing whether to deny us entry again, and by what pretext, but I’m getting ahead of myself.

While watching the jury selection, it was the batch that was being dismissed in full, the court bailiff suddenly bolted from behind where we were sitting and told the judge she’d overheard us whispering about inappropriate subjects, specifically using profanity. This accusation was based on a dear Occupier’s habit of muttering colorful asides. Okay this was true, but in his defense, it was after the jury being spoiled, about the jury being spoiled, but inappropriate none-the-less and he apologized. But to tie all together in the misbehavior was a fabrication. The prosecutor tried to have us evicted, and Officer Paladino chimed in about the confrontation I instigated at the door. That’s when my friend told the judge she’d overheard CSPD officers discussing plans to keep us out, so the bailiff’s actions began to appear a little contrived.

This complaint was finally settled with the judge’s warning that one peep out of us would get us 90 days in jail for Contempt of Court. At this point we knew the pieces of duct tape we’d brought in to use to protest Steve’s gagging were definitely OUT.

Just before lunch recess I was able to clarify with Judge Williams whether the peace t-shirt I had wanted to wear was acceptable to the court. Receiving no objection from the prosecutor, the judge told me it would be okay, and then assured me he’d inform CSPD.

Returning from lunch, once again with the peace shirt, the security screeners nearly didn’t let me pass, but I barreled past with the confidence of someone who knows his rights. This time Officer Paladino came upon me at the courtroom door, swaggering right into my face assuring me he was not going to let me pass. FORTUNATELY before he could wrestle my arms behind my back, another supervisor arrived who’d heard the judge, and I was allowed to proceed. Boring story I know. But the pattern was unsettling.

Then Steve was found guilty, you could feel the city’s giddiness as they discussed sentencing. We’re only talking community service, but Colorado Springs has only one contractor for that, the odious Keep Colorado Springs Beautiful, whose hi profile task is to clean up after the CSPD Homeless Outreach Team scoops up the homeless and puts them in shelters very much in the model of correctional facilities. Steve was able to negotiate a less anti-homeless agency, and that’s the story so far.

Should the London Olympics remember the 1972 Munich Holocaust? Do you?

America can’t memorialize the 1972 Munich hostage killings, because that act of terrorism was not unlike our own airstrikes or special ops raids, against purported enemy combatants, off the field of combat, except we don’t even try to kidnap them alive.
 
Of course the Israeli Olympic wrestlers and weightlifters killed in Munich in 1972 should be memorialized. But to call the deaths a massacre pretends the German police meant their ambush to kill everyone.* What happened at the 1972 Olympics is being recalled as the “Munich Massacre” but even the propagandists tweaking the Wikipedia entry don’t have the temerity to doff the disclaimer that “massacre” is the informal name. Shall we recall what happened? On September 5, 1972, PLO terrorists infiltrated the Olympic village and tried to kidnap Israeli hostages to exchange for 234 Palestinians held by Israel. Two Israelis fought back and were killed. Next the eight gunman and their nine captives were led into an ambush at a military airfield. After a 1 & 1/2 hour gun battle on the tarmac, trapped under the helicopters by police snipers, the PLO killed four of their captives. A police investigation revealed the remaining five captives may have died in sniper crossfire. This detail is disputed, but a secret financial settlement was sought and reached with German authorities. So, was Munich a massacre or a botched hostage rescue? Do words matter? The Mossad’s retaliatory murder of an innocent Moroccan waiter in Norway, mistaken for the Munich mastermind, is trivialized as the Lillehammer Affair.

Proponents want an Olympic tribute to the Munich Massacre “so that it never happens again.” Boy does that ever have a familiar ring to it. Look out for an Elie Wieselish re-tailoring of the original narrative, Steven Spielberg’s Munich being only a recent example of a myth-makeover remembrance.

To begin with, the PLO kidnappers were a faction of the PLO called the Black September Brigade, named after the Black September purge of the PLO from Jordan. This ouster, aided by the US and fought by Syria, was initiated by Israel’s attack on the village of Karameh, in which the PLO suffered 200 killed, to the IDF’s 28. Not a massacre because 150 PLO fighters were taken captive. Wikistorians taking liberties with translation are calling the PLO group “Black September”, with the effect of obfuscating the event which preceded the Munich operation.

The Munich raid to seize hostages was actually named “Operation Iqrit and Kafr Bir’im” after the Christian villages of Kafr Bir’im and Iqrit, ethnically cleansed by Israel in 1948. Villagers were granted right of return by Israel’s supreme court, but overruled by the military. An attempt to return had been repulsed by police as recently as August 1972, as the Olympics began.

Next, the identity of the Israeli athletes is always left incomplete. With the exception of the 18 year old Russian immigrant, all the Israeli hostages were IDF soldiers who’d participated in military acts against Palestine, Egypt, lebanon, Jordan, or Syria, and so are not exactly the innocent civilians of current retellings.

Who killed the Israeli captives during the gun battle with German police? An immediate investigation found that sniper fire may have hit the captives, as it had also severely wounded a fellow policeman. A cover-up long obscured the official reports. While this could be pretended to protect the German participants, it also kept the blame on the PLO gunmen, which would have been critical to justify Israel’s “eye for an eye” revenge killings.

Did the gunman strafe their hostages with bullets upon seeing the arrival of the police armored reinforcements? The only witness accounts come from the German authorities. We might accept that the lead PLO gunman lobbed a grenade into the first helicopter with the intention of killing the four hostages it contained, if they were still alive. An autopsy revealing that one of the Israelis died from the flames is used the emphasize that the grenade, and thus a PLO terrorist, certainly killed him.

Though the German police admitted potential culpability for the deaths of the five hostages in the second helicopter, a later analysis put convenient blame on a particular gunman, one of them ones captured and who eventually escaped justice by being released. Certainly this narrative would be critical if Israel hoped for popular support for their effort to hunt the gunman down.

Many of Israel’s revenge killings involved car bombs which risked collateral deaths and injuries. Assassinating the “mastermind” killed eight others, including a nun, and injured 18 more.

Whether the PLO gunmen killed the Israelis or not, even the operation’s planners can’t be said to have intended it. No one masterminded a massacre.

Of the PLO participants in Munich, five gunman were killed, and three were captured. Those three were released weeks later to meet the demands of a subsequent hijacking. Israel’s Mossad boasted of having tracked them down and assassinated them shortly thereafter. But accounts vary, and one of them was interviewed decades later for a documentary. What’s known is that Israel implemented an “eye for an eye” operation that over 20 years hunted and killed 20-35 Palestinian targets. They weren’t sought out to take hostage but to murder, and most of them were unconnected to the Black September Brigade. The Mossad long-arm-of-the-law theme was less about revenge than deterrence, because anyone who might have masterminded or abetted the Munich plot was planning a kidnapping not a murder.

If a massacre is measured by an imbalance of casualties, let’s look at the numbers. After 11 Israelis were murdered, Israel retaliatory airstrikes killed 200 in Syria and Lebanon, an IDF raid killed up to 100 in Lebanon, and the Mossad targeted up to 35 in subsequent assassinations. Here’s an accounting:

Sept 5-6, 1972
11 Israeli athletes, coaches former IDF
(2 killed by BSB in initial break-in, 9 killed during the ambush rescue attempt, possibly by crossfire)
1 German police
5 PLO gunmen

Sept 8, 1972
IAF retaliatory airstrikes on PLO bases in Syria and Lebanon.
200 Palestinians killed, including women and children

IDF Operation “SPRING OF YOUTH” raid on Lebanon, April 1973
3 PLO suspected planners
12-100 PLO members
1 PLO wife
1 Italian woman
2 Lebanese policemen
Unknown number of Lebanese civilians

Mossad Operation “WRATH OF GOD”, (20-35 targets over 20 years)
PLO translator of disputed BSB involvement, Oct 1972
PLO senior official, December 1972
Palestinian activist “expertly” pushed under bus, London, 1972
Jordanian Fatah rep, January 1973
Law professor at Am Univ of Beirut, April, 1973
Replacement for Fatah rep, Athens, April 1973
(2 BSB minor members injured, Rome, April 1973)
PLO director of operations for BSB, June 1973
Moroccan waiter, mistaken identity, Norway, July 1973
3 Arab-looking men, Switzerland, January 1974
Arab security guard, Spain, August 1974
PLO rep, blamed on the Abu Nidal Org, London, January 1978
2 PLO reps, Paris, August 1978 (3 injured)
PLO suspected “mastermind”, car-bomb, January 1979, also killed:
4 Bodyguards
1 British student
1 German nun
2 Lebanese passersby (also 18 injured)
PLO military head, Cannes, July 1979
2 Palestinians, December, 1979
PLO rep, Brussels, June 1981
2 PLO senior figures, car bomb, Rome, June 1982
PLO senior official, car bomb, Paris, July 1982
PLO senior official, drive-by, Athens, August 1983
PLO Secretary-General, drive-by, Athens, June 1986
PLO official, car bomb, Athens, October 1986
2 Palestinians, car bomb, Cyprus, February 1988 (1 other wounded)
PLO suspected head of intelligence, June 1992

What’s that? The ratio is 11 to 335 and the Israelis want to call it a massacre? If you count the Palestinians killed in the initial Black September attack on the PLO in Jordan, the comparison becomes irrelevant.

But the Munich ratio is nothing compared to the 1,500 Gazans killed in Operation Cast Lead. Now there’s a massacre.

*ON THE OTHER HAND. The botched hostage rescue in Munich might very well have been a massacre. Do we really want to go there? The German snipers who initiated the gun battle at Furstenfeldbruck Airbase may really have behaved with a total disregard to the fate of the Israeli hostages. With the antisemitism that prevailed in Europe, and still prevails there among the working classes, it’s very likely the policemen looked at the gunmen and their captives with equal scorn. If the bound Israelis weren’t hit in the crossfire, it could certainly be held that the sniper attack provoked their killing. The coverup and subsequent private financial settlement reached between Germany and the Israeli survivors suggests a culpability of the like. In that respect, if European Jews look back at Munich 1972 and say it was a massacre, I believe them.

Obama takes historic step on pop-top, endorses gay marriage again for you

What next? Is candidate Obama going to say he’s against war again too? I recall some event last week which was held to be the kickoff of President Obama’s presidential campaign, but today’s statement confirms it, Candidate Obama is in the house, he’s for whatever you’re for, until it turns out, any expectations you had were too damn high, a president is powerless to do anything but what you’re against. President Obama rededicating May Day to be Loyalty Day leaves no words.

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.

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.

Today’s Tom Sawyer

It’s 4am here and this occurred to me strongly enough just now to have me say it just now. For Vic, Ken and the rest of my Christian friends, as well as Michele, Kathryn, and others who get twitchy when I bring up the Bible.
 
I had breakfast with my friend Vic a little while ago and we had some of this conversation–I mean this conversation. The one we’ve been having if you’ve read any of this stuff around here, or if you’ve been to see me at my Facebook, or on the sidewalk or whatever. Vic is a Christian, and about as solid a practitioner as I’ve ever met. He “works” as a prayer director for one of the internationally influential untaxed Christian pseudo-businesses one might easily enough find scattered around town here in Colorado Springs. Years ago I lived in Lindale, Texas and I used to say Lindale was the buckle of the Bible Belt. Now that some of the big organizations down in Lindale have disappeared due to fraud and embezzlement and the like and some of the people I knew down in East Texas have moved to this very town I sometimes say America’s waistline has risen with age and the buckle has found a home in Colorado Springs.

Anyhow, Vic is an affable guy and a good friend and we had a good time over our platesful of arterial lubrication such as we Americans like to do at breakfast. He said he had read some here on these e-pages–I aaalmost cringed because of a certain propensity of mine. Then I remembered one of the axiomatic rules I’ve taught my kids since they started picking up English: “There’s no such thing as a bad word, only bad timing.” It’s time for this.

Vic said he found some of the thoughts he’d come across here, “interesting,” and mused that I had a bone to pick with “organized religion,” which is true, but hasn’t really come up at hipgnosis just yet, I don’t think. I cringed a bit at having utilized terms like “motherfuckah” while discussing a Bible tidbit known as the Beatitudes from a longer passage known as the Sermon on the Mount. It’s one of those axiomatic rules for lots of Christians, and for many who’ve never set foot in a Christian edifice as well. One finds the passage, (from the book of Matthew, chapter 5, in the Bible, if you’re interested), hanging on wooden plaques and the like in people’s living rooms and over their toilets and chapel entrances all over the world, and I suppose in every tongue still in print. I felt a twinge of embarrassment at the time that I get now and then from writing strongly about such grand subject matter knowing well that I’m no saint myself. So I brushed my way by that one at the time, and we went on with breakfast, and with other portions of the Conversation. That’s why this is for Vic at the top of the page, not ’cause I mean to point him out as a prime exemplar or anything.

I have lots of Christian friends, and I often claim that very appellation amongst them, (though not so often amongst the “Romans”); some of them may now think of me as shooting my own foot as I continue. I also have friends that are occultist dope fiends. They’ll find this bit rather more amusing, I expect, but I’ll implicate myself with them too, when I get a round tuit. This is not about organized religion–it’s personal, you see, and directed at people I know, among others including myself where it applies, by which I mean, “where it applies.” Not, “where it applies unless it’s uncomfortable to apply it there like Mercurochrome or something.”

Christians are full of shit as a defining point–the idea of Christian full-of-shitness is all over the New Testament. Many if not most of them have not the merest clue about their own doctrine and those that do spend hours and hours at intricately complex and totally reducible discussions about irreducible complexity and such while ignoring the business of Love so central to their own foundations. (Recall my comments about pseudo-statements now, if you will). One of the so-called Ten Commandments reads, “Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain,” in that poetic old Frank Bacon English I love so much, (Exodus 20:7, if you give a damn). I’m not gonna dig out a Hebrew lexicon to make this point, and some translations say “misuse” or something instead of “take…in vain”. Whatever. You Christians quit tapdancing and think about this.

Just about any Christian will get at least a little uncomfortable if you say, “God damn it.” There are injunctions in their doctrine warning them away from curses, as well as oaths, unpiloted tongues, and “coarse language”. They don’t so often know the difference and figure this sort of thing for “taking the LORD’s name in vain.” Think about this: When a woman marries a man in most contemporary societies, she takes his name, though this is no longer so mandatory as it had been given the slow and incremental abandonment of the notion of women as property in vogue these days. If a woman, say, marries some patriarchal dude and then goes to work for some pimp on the side, she’s taken Dude’s name in vain. So when Christians do their little tapdancing around points in their own bedrock supposedly established by Gawd Himself and endorsed by His Only Begotten where they’ve not-quite-deliberately, (that’s a dance move called an NQD in the studios, BTW), failed even to drill for pylons, they join the Golden Calf Party, and according to their own lore will be consumed in the fires as they fall through the very fissure in that bedrock I describe here now.

This is the same sort of thing going on when a guy zips up his fly after reading about turning the other cheek and steps out to shoot his quota of Afghans for the day. Or votes a “hawk” into office at his 8-year-old’s school assembly room. Or works up a smokin’ hot head of steam about the crackhead that broke into his garage to feed a real live demon that lives in any crackhead’s pocket and gets real hungry and cranky, (snicker), when its belly is empty. And practicing the sort of bullshit Christianity that allows for this sort of Gene Kelly move is like sailing down the mighty Mississip’ on a flat Tom Sawyer raft made of the concrete that you ought to have been using to build your foundation instead. You’re already at the bottom of the river and the Water of Life is flowing right by your drowned bones.

I’ll be danged…the Sun is coming up over a fine Colorado Sunday morning and I’ve just come to wrapping up a genuine sermon, complete with brimstone. Who’da thunk it?

Pay attention Christian: The World doesn’t hate you because you bring Jesus up all the time. It hates you because you sully a beautiful thing. It hates you because you’re an abject hypocrite, the worst variety of an asshole! And they can smell it, even if they can’t articulate the thought. And none of this is wrong; the fact that it’s coarse is a separate matter. I may have blown my disguise for some…it’s ok, I’m still pretty clear with my own notion of where I stand, and this is for you at least as much as it’s for my own amusement. To paraphrase Gandhi, “I’d be a Christian if it weren’t for the God damn Christians.” That nor any of the above has nothing at all to do with whether I’m actually a Christian or not, nor does it have to do with “religion”, organized or otherwise. It’s about that personal relationship you guys keep talking about. It’s dysfunctional, Yo, and it’s up to you to straighten yours out while I worry about my own.

(Reprinted from Hipgnosis)

Consider the Lilies

My friends are no doubt a scrappy bunch. It’s no big surprise that guys like Jon and Adam and–holy shit–Skip, are pissed off and ready to burn a few barns down, so to speak. I don’t think I need to look up a bunch of fancy references to convince anyone that things are dire, dire, dire. The college students I went hiking with yesterday afternoon will have to live what, like 20,0000 years to pay off the stupid shell-game debt they supposedly owe. Some guy on Adam’s page was trying to convince me the whole business is thus because we never pay our bills. Bullshit. It’s like this because a buncha paranoid Fascist clowns have set up a little magick trick to try and convince us they have some legitimate claim to all the cheese. THEY DO NOT!!!

So there’s a fight working alright, and I’ve been in it since I was a potential in my Granddad’s genetic line. But I recently noticed–this is so weird–we’re all fighting the wrong guy, and he is us. If we collapse our little bubble here in our little gob of the quantum foam, we’re all screwed; not just us little guys. And we really do have enough guys to kick their Fascist asses on the way down. But guess what, we’ve all got it wrong!

Like it or not we’re all in this together. We’re each and every one of us as fucked up as the Devil!!! Shit he may have been the only sane one all along–but now I’m just picking at scales. Sorry. Didn’t meant to. Ahem. Point is some of us are fucked up differently than others. It doesn’t matter. That crackhead? Fuck-ed. The cop beating him down? Fuck-ed. Dominique Kahn-Strauss? Fuck-ed. Who else? The Pope? Me? You? Yeah, you’re starting to anticipate if not grok me.

I’m a tool. Sometimes I’m also a dick and an asshole. That’s another matter–I’m happy about being a tool.

A while ago I came back to Colorado from a trip back to Cleveland for the great John Covert’s 95th birthday party. The moment I returned to my adopted home town, every television set in the danged known Universe began to trumpet the imminent falling of the sky, talking heads of every political stripe and linguistic camp bewailing the unavoidable collapse of the American dollar and the entire foundation of all civilization along with it. I found myself with time on my hands, so I started tinkering with this blog as nothing more than an outlet for some frustrations, and a place to sling a bit of my ordinary schtick, mainly just at myself, assuming I’d be the only one reading. I played around on Facebook a little meaning nothing more than to hunt down a few friends from the distant past. That’s what FB is for, right? A series of rapidly developing events took place and I soon found myself in the position I mean to describe right now, as best as I am able.

I guess I can’t recall the first moment I was told I could write. It hasn’t really mattered til recently–everyone knows writing is one of those career choices pursued by quixotic artsy-fartsy types that were willing to sacrifice creature comforts on the off chance someone might give a shit, and that the big bucks might roll in, easy-pleasy. Like hitting the lottery or breaking into the billboard charts with your high-school garage band, right? Besides, writers as a breed must, by necessity, possess a form of self-deluded arrogance that they have things to say of such verity and import that people will be compelled to actually pay money to subject themselves to the grief of listening to the blather produced in the effort to be a big deal. It was never like that. I just wanted something to fill the time that wouldn’t dissolve my brains like the all to comfortable slide into awareness of regularly scheduled TV programming was beginning to do.

Somewhere in the midst of Facebooking about how we need a new econo-political paradigm it became apparent that bitching about this need had long been a habit of mine, as well as of many of my friends. I’ve always been a pretty good bitcher, too, in fact, when I entered the foundationless world of a self-employed remodeler it was a sense of the futility of bellyaching about how paint companies were managed. My brother and I had enough faith in our pooled abilities to believe we could do things better than the people running outfits for which we had worked to strike under our own banner. The key words in this were and remain “faith” and “believe”.

So it occurred to me that if I really believe my own drivel, I ought to live it out.

Well that was an eye-opener. Very little pursuit of that idea led me to examine just what I actually believe, which turns out to be quite a bit, and quite at odds with the established order of things. I started, as is my wont, to contemplate God, and the deeper nature of things. I thought about how this transposes to something manageable in this “real” world. We have to work at a job, right? We have to round up bacon we can trade for goods, services, support for our children, and so on. But wait a minute–20 years of self-employment, and I was broke, money-wise, and most of my relationships were broke in some sense as well, though in most instances I couldn’t tell how, or how to fix it. Seemed the thing I was best at doing was bitching. Where’s the fun in that?

But I do believe in God, right, even though I’ve managed to get myself thrown out of both Christian churches and sorta like devil-worshiping occult groups because my notions of God are…unconventional. Enough so I’m usually inclined to put quotation marks around “God” when I type the word, and to feel compelled to issue tedious disclaimers about how I differ from the general milieu of thinkers on the matter.

An experiment in ontological ideoplasticity.

This whole thing is about stuff I believe. I’m kinda stuck at that level, since there’s not much I know. Some of what I believe has to do with what other folks believe, so I’ll be pretty much doing what a lot of other folks do, in a lot of ways. In some

Whoa!!! Blah Blah F-ing Blah.

Mt 6

25 Therefore I say unto you, Take no thought for your life, what ye shall eat, or what ye shall drink; nor yet for your body, what ye shall put on. Is not the life more than meat, and the body than raiment?

26 Behold the fowls of the air: for they sow not, neither do they reap, nor gather into barns; yet your heavenly Father feedeth them. Are ye not much better than they?

27 Which of you by taking thought can add one cubit unto his stature?

28 And why take ye thought for raiment? Consider the lilies of the field, how they grow; they toil not, neither do they spin:

29 And yet I say unto you, That even Solomon in all his glory was not arrayed like one of these.

30 Wherefore, if God so clothe the grass of the field, which to day is, and to morrow is cast into the oven, shall he not much more clothe you, O ye of little faith?

My apologies to any devil-worshiping freaks I may have just offended. You’re wrong, anyhow–that’s for another moment. Point is–and I’m no ordinary Christian–this is stuff we all learned from the cradle. I’ll be using Christian doctrinal talking points throughout this whole conversation because that’s where I learned this shit. It’s also where I learned it was all crap.

I’ve had a real hard time with this one, cause by now I can usually say, “The point is….” Right now I still can’t do that. The whole collection of thoughts in my head begins to ooze its way into the point when I come at it this way. Bear with a little, OK?

Christians say they believe the book that stuff up the page a little came from is the sacrosanct Word of God, equated with the Logos–God on paper, if you will. With apologies to those real Christian human beings in the world, Bullshit, Bullshit, Bullshit!!!!! If you shitheels really believed one word of the shit in that book, this conversation would be intrinsically inconceivable. See that at the end of that last sentence? PERIOD.

On the other hand, I believe the Bible to be a beautiful collection of fine literature, some of which may be divinely inspired. We have all these cultural heroes, like Gandhi whom I linked to on FB earlier, Jesus, John Lennon ferchristsake. We pay a bunch of lip service out to them then grab a beer and flick on some stupid nonsense on TV, or punch a child, or throw rocks at a cop, or bust a protester. Fuck that, I decided I believe it. Whatever it is.

You may have noticed me carrying on about a new paradigm, money’s a bad metaphor, we’re all in this together, &c., &c. All that is real, real important to what this is about, but OMG kids! This was a bitch to get off. I’ll be hanging flesh on it all as I go, but be patient. what ended up here just now was way different than what I’d meant to do. A writer has to possess a pretty ridiculous quantity of arrogance in the first place, just to have the motivation to sit here pouring all of it out. I mean, I think this tripe I’m typing is valuable enough, and that you all will want to see it–need to see it–to occupy me at 3:30 in the fucking morning. Even worse, here and round about, (get wit’ me on Facebook, if you came from somewhere else), I’ll be arguing with Hegel, Gandhi, Paul the fuckin’ Apostle. Can you believe it? Whatever, I believe the finer points from all those guys. I’ll explain everything.

This hasn’t been the clarification I’d promised to put up, but it defines some of the questions, I guess. You can have it.

Now don’t forget. A little review: It’s All Bullshit!!!

(Reprinted from Hipgnosis)

Love is the Reason, with grammatical advice, from A Tree Grows in Brooklyn

Hamlet Cigar advertI once saw a British TV spot for Hamlet Cigars which featured an oddball posing in a photo booth, but so endearingly. For years on, when asked to smile, I affected his toothy grimace, thinking my rendition channeled but transcended his comically unbecoming turn. I channeled nothing of it, each time, I can confirm.
 
Now I’ve traced my abuse of adverbs, not to this song, but to the spirit in which Broadway lyricist Dorothy Fields used THREE to frame the verses of Love is the Reason from the musical version of A Tree Grows in Brooklyn. In this song showstopping comic Shirley Booth advises her younger sister on love, ornamenting her insight with the authority-robbing qualifiers, meant to be irrelevant. Aspire as I might to stop, HANDILY I am my parody.

Love is the Reason
Each line is echoed by the chorus
(Parentheses indicate where reply varies)

Spoken: Suppose your mother never stood in a dark vestibule with your father, they might never have had to get married. Why do you suppose they did it? It was love.

  Love is the reason you was born,
  Love was the gleam in Papa’s eye.
  People suddenly meet, People suddenly fit,
  People suddenly hit, And brother, that’s it!

PERSONALLY Love is a kick right in the pants,
Love is the aspirin you buy.
If you’re flappin’ your fins, If you’re climbin’ a wall,
There must be a reason for it all. (What is the reason for it?)
Love is the reason for it all!

  Love is a night you can’t recall,
  Love is that extra drink you drank.
  Love’s a shot in the arm, Love’s a poke in the ribs,
  Buyin’ bottles and bibs, And fillin’ up cribs.

OBVIOUSLY Love is an old established trap,
Ten million suckers walk the plank.
If you land on your tail, Ev’ry time that you fall,
There must be a reason for it all. (Who needs a reason for it?)
Love is the reason for it all!

  Love is a toothache in your heart,
  Love is a gentlemanly pinch.
  Love is stubbin’ your toe, Mashed potatoes with lumps,
  Wearin’ very tight pumps, Or catchin’ the mumps.

GENERALLY Love is a blow below the belt,
Love is a holdin’ in a clinch.
If you shut your big mouth When his relatives call,
There must be a reason for it all. (Who needs a reason for it?)
Always the teasin’ in the hall; (Hallways are lovely for a call;)
Call it the season, I say, love is the reason for it all.

The Wondrous Tale of Brer Lamborn, Brer FOX & Obama the Tar Baby. Uncle Remus and Racism in Colorado Springs.

COLORADO SPRINGS- If US Rep. Doug Lamborn (R-CO) remembered one thing from the Uncle Remus stories, it was not to touch that Tar Baby! You know, the one Brer Rabbit mistook for a cute black infant who would not tip his hat to his better. Or was that a Porch-Monkey? Colorado’s 5th District is unclear about the distinction if the local media and Fox News are to be believed. Either term refers to a poor person whose sticky problems become your “quagmire” if you ignore your natural prejudice to their skin color and you let them touch you. Can a representative of bigots be bothered to know if a racial slur is offensive? According to Lamborn, he can’t. More important, the congressman reiterates –as he professes his apology to people taking umbrage at racism he hadn’t intended to express– is: NOT TO TOUCH THAT OBAMA!
 
To be clear, Doug Lamborn hasn’t apologized to his constituents, he’s only claimed to have sent President Obama a letter, assuring all that Obama, the black untouchable, will have the grace to forgive him as “a man of character”.
 
And so this Uncle Remus tale simply goes on…

The story so far
Lamborn calls black US president a Tar-Baby, public outrage ensues, Gazette newspaper lends support to Lamborn’s excuse that Tar-Baby wasn’t used in racist sense. Protests held by NAACP, community groups and local progressives, all which Lamborn refuses to meet. Lamborn office erects sign NO PROTESTS.

ACT II: Lamborn office calls for his supporters to rally, presumably under the “no protest” sign. His office issues a press release: AP, Fox News, national and statewide outlets report before the fact that LAMBORN SUPPORTERS RALLY. Huffpo and Springs activists scramble to get images of said protest sanctioned despite “no protest” sign, find none. Local TV station KOAA which had depicted rally with a photo, hours before it was alleged to happen, omitted to mention photo was from file, conveniently unfocused and likely of a past year election event.

With every shenanigan, the theme resounds: the Colorado Springs establishment supports what Doug Lamborn said about Obama being a Tar Baby.

Racism in Colorado Springs
No one is in denial about the unsavory support behind Doug Lamborn. So does Colorado Springs support his bigotry?

Does the Tea Party shit in Acacia Park? You should see those clan gatherings, you can’t find a parking space for blocks, then it’s a sea of hate-filled white faces, with Doug Lamborn right there up front.

The comment section of every local media blog overflows with indignation that “Tar-Baby” is being construed to be racist. Commentators assert their preference for Freedom of Speech over Political Correctness.

BTW, Colorado Springs is as segregated as Chicago, with black neighborhoods, churches and schools. Many lives never cross the path of another of different ethnicity, so we’re blameless actually when we conclude there’s no racism here.

Except toward Hispanics, grouped conveniently with illegal immigrants, who don’t count, by definition, according to our favorite definition: legality. Same as used to apply to slaves.

The Pikes Peak region was a hotbed of clan activity in the 1930s, and obviously before that. At the turn of the century, the good folks of Limon had to hold up a lynching, make the poor young black boy wait hours in the November cold because hundreds wanted to come on the train from Colorado Springs to see 16-year-old Preston Porter burned alive at the stake.

Lynchings of Native Americans weren’t even recorded, being as they were, sanctioned as vermin control. It was seldom that white men distinguished themselves by speaking out in defense of Indians. Pikes Peak volunteers rode with Colonel Chivington to commit the Sand Creek Massacre.

Today downtown Colorado Springs boasts a lone statue of an African-American, a William Seymour, among the city notables immortalized in bronze. His is the only likeness made to take off his hat, outdoors, I kid you not.

Speaking of which, that was Tar-Baby’s offense.

Brer Rabbit and the Tar-Baby
Brer Rabbit was passing by the little black figure, and called out a friendly hello. But Tar-Baby wouldn’t answer when spoken to. When he wouldn’t even take off his hat, Brer Rabbit figured he’d teach him a lesson. Apparently, it’s not inappropriate to clobber some status of people if they’ve disrespected you.

Of course that was the only way Brer Fox’s plan was going to ensnare the rabbit, to mire him in the tar.

You might ask, how did Brer Fox know that Rabbit was going to mix it up with the Tar Baby? Would Rabbit have laid his hand on the baby if he’d been white? Would it have mattered if a white baby didn’t answer to his greeting?

Put aside that the Tar Baby expression became a racial slur in itself, the original Tar-Baby character impersonated an African-American child who didn’t show the expected deference to a rabbit.

The accompanying images reflect the changing visual representation of Tar-Baby. He makes his first appearance in an early chapter of the Uncle Remus Tales (as collected by Joel Chandler Harris) called “The Wonderful Tar-Baby Story.” Above is one of the original illustrations by artist A.B. Frost. There Brer Fox creates a “baby” made of tar to lure Brer Rabbit into his clutches.

The next images are from Disney versions. First the animated film SONG OF THE SOUTH, then the children’s books which followed.

Disney famously has not released Song Of The South after its theatrical run. The depictions were too ethnic, and Tar-Baby recalled the black-face entertainment that ought not to have so amused white audiences. Black-face is what passes for a negro face to whites. Similarly, a baby made of tar passes for a negro, but only in exaggeration. Oblivious to many, apparently, is that African-Americans are not by any approximation black. If Brer Fox had made a baby out of milk, would white people confuse its color for their flesh tone?

Disney rewrote the tale for its children’s book series, making the tar baby this time out of glue. Not only that, but they gave him ears to resemble a rabbit. This preempted confusing him for a human baby, black or white. Now Brer Rabbit could be seen taking him for his kin, which of course shifts the premise, and might puzzle some children to wonder why Brer Rabbit is so quick to come to blows.

Uncle Remus
Some will probably ask in earnest: are the Uncle Remus tales racist? No, but their context is complicated. The stories emerged from the plantation South, from storytellers who lived in slavery. The lessons imparted are universal, but the particulars were obviously crafted to help slaves come to terms with their unchallengeable fate. Shall I quote a few passages to see if you get the idea?

Brer Tarrypin, he lay back up dar, he did, des es proud ez a nigger wid a cook possum.
–chapter 10

He scrape it clean en lick it dry, en den he go back ter wuk lookin’ mo’ samer dan a nigger w’at de patter-rollers bin had holt un.
–chapter 17

Dey er mighty biggity, dem house niggers is, but I notices dat dey don’t let nuthin’ pass. Dey goes ‘long wid der han’s en der mouf open, en w’at one don’t ketch de tother one do.
-chapter 27

How about this wrenching bit from A Story of War?

Nigger dat knows he’s gwineter git thumped kin sorter fix hisse’f, en I tuck’n fix up like de war wuz gwineter come right in at de front gate.

From chapter 33: Why the Negro is Black:

ONE night, while the little boy was watching Uncle Remus twisting and waxing some shoe-thread, he made what appeared to him to be a very curious discovery. He discovered that the palms of the old man’s hands were as white as his own, and the fact was such a source of wonder that he at last made it the subject of remark. The response of Uncle Remus led to the earnest recital of a piece of unwritten history that must prove interesting to ethnologists.

“Tooby sho de pa’m er my han’s w’ite, honey,” he quietly remarked, “en, w’en it come ter dat, dey wuz a time w’en all de w’ite folks ‘uz black—blacker dan me, kaze I done bin yer so long dat I bin sorter bleach out.”

The little boy laughed. He thought Uncle Remus was making him the victim of one of his jokes; but the youngster was never more mistaken. The old man was serious. Nevertheless, he failed to rebuke the ill-timed mirth of the child, appearing to be altogether engrossed in his work. After a while, he resumed:

“Yasser. Fokes dunner w’at bin yit, let ‘lone w’at gwinter be. Niggers is niggers now, but de time wuz w’en we ‘uz all niggers tergedder.”

“When was that, Uncle Remus?”

“Way back yander. In dem times we ‘uz all un us black; we ‘uz all niggers tergedder, en ‘cordin’ ter all de ‘counts w’at I years fokes ‘uz gittin’ ‘long ’bout ez well in dem days ez dey is now.

But atter ‘w’ile de news come dat dere wuz a pon’ er water some’rs in de naberhood, w’ich ef dey’d git inter dey’d be wash off nice en w’ite,

en den one un um, he fine de place en make er splunge inter de pon’, en come out w’ite ez a town gal.

En den, bless grashus! w’en de fokes seed it, dey make a break fer de pon’,

en dem w’at wuz de soopless, dey got in fus’ en dey come out w’ite;

en dem w’at wuz de nex’ soopless, dey got in nex’, en dey come out merlatters;

en dey wuz sech a crowd un um dat dey mighty nigh use de water up, w’ich w’en dem yuthers come long, de morest dey could do wuz ter paddle about wid der foots en dabble in it wid der han’s.

Dem wuz de niggers, en down ter dis day dey ain’t no w’ite ’bout a nigger ‘ceppin de pa’ms er der han’s en de soles er der foot.”

And my favorite passage, called Turnip Salad:

“How many er you boys,” said he, as he put his basket down, “is done a han’s turn dis day? En yit de week’s done commence. I year talk er niggers dat’s got money in de bank, but I lay hit ain’t none er you fellers. Whar you speck you gwineter git yo’ dinner, en how you speck you gwineter git ‘long?”

“Oh, we sorter knocks ‘roun’ an’ picks up a livin’,” responded one.

“Dat’s w’at make I say w’at I duz,” said Uncle Remus. “Fokes go ’bout in de day-time an’ makes a livin’, an’ you come ‘long w’en dey er res’in’ der bones an’ picks it up. I ain’t no han’ at figgers, but I lay I k’n count up right yer in de san’ en number up how menny days hit’ll be ‘fo’ you ‘er cuppled on ter de chain-gang.”

“De ole man’s holler’n now sho’,” said one of the listeners, gazing with admiration on the venerable old darkey.

“I ain’t takin’ no chances ’bout vittles. Hit’s proned inter me fum de fus dat I got ter eat, en I knows dat I got fer ter grub for w’at I gits. Hit’s agin de mor’l law fer niggers fer ter eat w’en dey don’t wuk, an’ w’en you see um ‘pariently fattenin’ on a’r, you k’n des bet dat ruinashun’s gwine on some’rs.”

What about “nigger”?
When Russel Means writes of today’s economic and anti-democratic troubles, and addresses America’s newly impoverished middle class by saying Welcome to the Reservation, this is the wisdom I think he’s looking to impart. Welcome to niggerdom, Nigger.

With that word now struck from Huckleberry Finn, the concept of “nigger” becomes harder to grasp and can’t teach us its lesson.

Listen to Uncle Remus talk about what it means to be a lowest class being, beneath the interest of humanity, untouchable, as government functionaries like Doug Lamborn would prefer the underclass laborer remain.

It’s against the moral law for niggers to eat when they don’t work. AND
I ain’t handy with figures, but I lay I can count on one hand how many days it’ll be before [“knocking around” will land you niggers] in the chain-gang.

I suggest you reread that last passage of Uncle Remus in its original. Now I’ll try my hand at the last half of that phrase:

It’s against the moral law for niggers to eat when they don’t work, and when you see them apparently fattening on air, you can just bet that ruination is going on somewhere.

Wisconsin election close, but no cigar, if there was a cigar

The recall defeat in Wisconsin brings to mind Emma Goldman’s famous adage: “If voting changed anything, they’d make it illegal.”
Now we’ll never know if a Democrat majority in Madison would have behaved any different than a herd of Republicans. I doubt it. Activists are patting themselves on the back for their partial success, saying the effort was worth it, which is the usual consolation for losers, and ignores the fact that many of Wisconsin’s present Democratic Party legislators already betray their constituents. Here’s another quote, by a Japanese engineering professor I had in college who used to say in broken English: “You build bridge. It fall down. No partial credit.” Imagine what he’d have thought of a bridge to nowhere.