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

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

Document 29 Filed 02/22/17 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

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

NAZLI MCDONNELL, and
ERIC VERLO,

Plaintiffs,

v.

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

Defendants.

________________________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION IN PART
________________________________________________________

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

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

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

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

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

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

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

I. FINDINGS OF FACT

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

A. Regulation 50

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

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

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

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

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

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

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

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

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

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

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

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

B. The Executive Order

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

C. The January 28 Protest at the Denver Airport

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

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

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

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

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

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

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

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

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

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

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

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

D. The January 29 Protest at the Denver Airport

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

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

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

E. Permits Since Issued

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

II. REQUESTED INJUNCTION

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

III. LEGAL STANDARD

A. The Various Standards

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

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

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

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

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

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

B. Does Any Modified Standard Apply?

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

IV. ANALYSIS

A. Irreparable Harm as it Relates to Standing

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

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

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

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

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

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

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

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

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

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

B. Likelihood of Success on the Merits

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

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

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

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

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

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

The Court will address these inquiries in turn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

i. Terminal Visitors’ Incidental Expressive Activities

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

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

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

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

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

ii. The Effect of Regulation 50 Itself?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

f. Viewpoint Neutrality

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

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

(Id.) Denver responds:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

?C. Irreparable Harm

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

?D. Balance of Harms

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

?E. Public Interest

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

F. Bond

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

V. CONCLUSION

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

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

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

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

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

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

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

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

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

__________________________
William J. Martínez?
United States District Judge

You fascist, loofah-faced, shit-gibbon!

When Donald Trump says he’s gotten no calls about the Dakota Access or Keystone XL pipelines saying “Apparently they’re not controversial” he’s trolling you. Making taunts with easily refutted falsehoods is the definition of trolling. But two billion smartphones can play that game, you just have to be as creative as Trump’s writers. However, don’t underestimate Madison Avenue specialists of the lowest common denominator. I know the Donald makes it look so easy, he’s insanely inane, but the selling of Cheetos and Trump bling detritus is a science. A Pennsylvanian senator is having a go, tweeting “Why don’t you come after me, you fascist, loofa-faced, shit-gibbon!” –an expression coined at an Anti-Trump demonstration in Scotland. Accordingly the corporate media is offuscating the Democrat’s name, Daylin Leach, likely because he’s an environmentalist. Let’s see if Trump bites.

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.

—————
1 No relation to the undersigned.?
————

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

Monk Brown set up a tent on the plaza. It took a SWAT team to take it down. Now a Denver jury took them down.

Adrian Monk Brown
DENVER, COLORADO- Homeless Adrian “Monk” Brown was accused of “obstruction” for sitting in a protest tent last August 26th on the plaza of the Lindsey Flanigan Courthouse. Monk was also charged with “interference” with the riot police sent to evict him. A subsequent charge of “failure to obey” was added by prosecutors pressuring Monk to take a plea. After a two day trial which ended Wednesday, a Denver County jury found Monk Brown NOT GUILTY of either obstruction or failure to obey. Owing maybe to a crime scene video that highlighted the brutal irreverance shown by protesters toward DPD officers, the jury did convict Monk of interference. Except now it wasn’t a crime scene. Monk’s attorney Melissa Trollinger Annis is challenging the inconsistent verdict because it’s unlikely interference will stick without the police having a cause for arrest. Monk wasn’t obstructing.

This verdict marks the second time Monk has beaten the obstruction charge. The first was November 17 when Monk was acquitted of erecting a tent in the plaza on August 28, two days after the recent case. Monk put up that tent the moment he got out of jail for his August 26 arrest. He was fully acquitted in that case. Monk’s subsequent arrests in the plaza on September 18 and September 24 were dismissed and dropped, respectively.

Monk’s arrests numbered among the 19 arrests and two citations issued against the plaza demonstrators during a full time Occupy Denver protest which ran from August 26 to October 21, 2015, when DPD effected a final eviction and activist resources became terminally waterlogged. Just as the activists have now become tied up in court, Denver police headquarters are now overburdened with a hoard of tents, tarps, chairs, umbrellas, banners, and drums which must be kept in evidence.

The plaza protest was launched after the arrest of Mark Iannicelli and Eric Brandt for distributing jury nullification fliers at the Lindsey Flanigan Courthouse. Activists with Occupy Denver won a federal court injunction to prevent such further arrests. With an ongoing legal battle stipulating the plaza as not just a traditional free speech zone, but a designated free speech zone, the city’s backdoor methods of restricting First Amendment Rights could be isolated and exposed.

For too long, the city of Denver has been able to curb free speech through backdoor charges: Obstruction, disturbing the peace, jaywalking, and TRESPASS. Activists are even charged with resisting arrest, when subjects are actively objecting to their unlawful arrest. The days of halting political demonstrations by having riot cops enforce city ordinances such as obstruction may be drawing to a close.

Even the Pope doesn’t want Trump. Uh, who is more status quo than the Pope?

When is the last time the corporate media was on your side? The fact that every news pundit opposes Donald Trump’s candidacy should indicate the real threat his election bid poses to the powers that be. Consider too that you are only seeing Trump through their lens. His lunacy and inanity are colored by their filter. What have you heard beside outlandish hyperbole? Is Trump a racist? In the hospitality business, most of his customers and his workforce cross the border. Fences? Bans? Trump is trolling, he’s saying whatever wins him attention over airwaves throttled and moderated by hostile gatekeepers. Neither Fox nor NPR want to consider Donald Trump “electable”. What does that say?!

What gets me is the left’s kneejerk alarm at Trump’s rise. As if the media’s clarion call rings for them. Alternative media is uncritically amplifying the mainstream fearmongering. Fortunately they’re all underestimating the American public.

TRUMP IS NOT A FASCIST, he’s a conceited blowhard. Trump is not an idiologue, he’s an ignorant narcissist. Trump is not a dictator, he’s a spoiled bully. AT WORST Trump could run the White House like a syndicate thug. Is that worse or better for the American people? We’ve already got government lawlessness. Let’s unleash absolute power to fight society’s real criminals.

AT WORST Don Trump could order drone strikes on the legislature. At worst he could deploy death squads against Wall Street and Madison Avenue. A gangland don’s ego will only be threatened by his rivals. Those of us without power have nothing he needs. If Trump crowns himself tsar maybe we’ll see bankers and media moguls have their hats nailed to their heads.

The status quo’s worst nightmare could not help but benefit its have-nots. And the American People know it, hense Trump’s unwavering popularity. To our political sages, Trump’s support is incomprehensible. Hardly. Trump is not a populist, he’s dumbo Rambo. Probably more Rambo than Dumbo. Uh oh. No wonder everybody in Who’s Who is terrified the public beast will get its proxy.
 
Now Pope Francis has spoken out against Trump. Figureheads for established power don’t get any bigger than the Pope.

You want to protest a pro-rape rally? Try Veterans Day. Don’t feed the trolls.

saddam-hussein-palace-us-soldiers-iraq
DENVER, COLORADO- So-called men’s rights advocates slash pick-up culture misogynists are making publicity for themseves by calling for rallies across the US to legalize rape. They suggest rape should be legal –in the home at least– a sort of Stand Your Ground haven for wife-beaters. To indemnify domestic abuse. These liberated emasculates are nostalgic apparently for when most sexual assault stigmatized the victim and stayed in the closet unreported. These freaks are trolling, obviously, but prompting indignant cries to mobilize counterprotests. So much so that the reassert-your-male-privilege meet-ups have been cancelled. Reportedly. See that’s the problem. It’s Phelps Bundyism NAMBLAism enabling the corporate media to paint “activists” in sordid stripes. DO YOU WANT TO PROTEST AGAINST RAPE? Protest systemic rape by occupation forces, whoever’s. Protest militarism. Protest American troops who try to rape 70% of their female soldiers and succeed with 40%, although who doubts that is underreported. Protest professional rapism to address the injustice of sexual violence. Let’s be fair. Rapists are also victims of rape culture. Protest rape culture.

Is Dzhokhar Tsarnaev guilty of a worse crime than US forces commit overseas?

Dzhokhar TsarnaevDoes the “Boston Marathon Bomber” look like he deserves the death penalty? Funny, you don’t even know what he looks like. US authorities have been meticulous about controlling images of Dzhokhar Tsarnaev since the manhunt for the teen and his older brother ended in extrajudicial firing squads which teen Dzhokhar survived. He’s been in custody since then and the only more recent image his captors released was of Dzhokhar giving the finger to a jail cell surveillance camera. This to influence the jury to give the death penalty. Why the embargo on images? Are authorities afraid the public will feel sympathy for the disfigurement Dzhokhar suffered from his fusillade? Where defense attorneys not permitted to submit images of Dzhokhar smiling? Is the image ban in effect a media blackout? Remember how Saddam Hussein’s trial was broadcast without sound? Now US dumb justice has become literally blind, all Star Chambers and spectral evidence.
 
Is Dzhokhar Tsarnaev guilty of a worse crime than US forces commit overseas? If an American sniper turned in the Tsarnaev brothers headcount, he’d be handed a potato peeler and punished with kitchen duty. Dzhokhar Tsarnaev is a small fry. US drone pilots eat massacres like the Boston Marathon for breakfast.

Israel caught birth controlling the Falash Mura, ethnically cleansing Jews of false flesh tone

How’s this for a Wikipedia item update? After five years of having denied the practice, the Israeli government admits it is secretly administering birth control injections to its Falash Mura population, reducing that community’s birth rate by half. Falash Mura you may ask, translates to “horse of the raven” –consult Wikipedia if you’d like to see some champion dissembling from the racist imagery of that term– and refers to the descendents of Beta Israel, or Ethiopian Jews, contested as improbably Jewish on account of their skin color making Semitic Europeans uncomfortable. Israel has very reluctantly offered birthright invites to their Ethiopian Diasporans. Israel’s Law of Return is not to be confused with the International Right of Return, to which all refuges are entitled, which Israel refuses to grant Palestinians, the original and more likely descendents of ALPHA ISRAEL. But getting back to this breaking story on Zionist racism, it turns out Israel has been preemptively ethnically cleansing their darkies, no worse than the US does with ghettos, drugs, cheap guns, and the prison industrial complex.

Smell test shows KONY 2012 viral vid tests positive for military grade virus

Solidarity with AngolaWas mainstream media endorsing a viral Youtube video your first clue that the Invisible Children campaign bears the suspicious signs of US war-making propaganda?! What “Save Darfur” was to Sudan, the CIA-spelled backward [Africa’s] Invisible Children operation is to Uganda. With its Libyan protector out of the way, Africa and its resources have never been more accessible, so now AFRICOM’s cross-hairs are on regional insurgent defenders. Apparently Joseph Kony is today’s poster villain, and those pitching a US intervention in Central Africa want to convince the public the engagement would have an exit strategy not to exceed 2012. Flowers and candy.

What are we holding against Joseph Kony, indoctrinating child soldiers? What are American recruiters doing in our middle schools but trolling for our Invisible Children who, undereducated, undernourished and unprotected from predatory militarist propaganda, succumb to the economic or criminal justice draft?

Occupiers can learn from Anarchists

Here’s one of the more popular pamphlets distributed at Occupy Colorado Springs, courtesy of the DABC. DEAR OCCUPIERS: A LETTER FROM ANARCHISTS
 
Support and solidarity! We’re inspired by the occupations on Wall Street and elsewhere around the country. Finally, people are taking to the streets again! The momentum around these actions has the potential to reinvigorate protest and resistance in this country. We hope these occupations will increase both in numbers and in substance, and we’ll do our best to contribute to that.
 
Why should you listen to us? In short, because we’ve been at this a long time already. We’ve spent decades struggling against capitalism, organizing occupations, and making decisions by consensus. If this new movement doesn’t learn from the mistakes of previous ones, we run the risk of repeating them. We’ve summarized some of our hard-won lessons here.

Occupation is nothing new. The land we stand on is already occupied territory. The United States was founded upon the extermination of indigenous peoples and the colonization of their land, not to mention centuries of slavery and exploitation. For a counter-occupation to be meaningful, it has to begin from this history. Better yet, it should embrace the history of resistance extending from indigenous self-defense and slave revolts through the various workers’ and anti-war movements right up to the recent anti-globalization movement.

The “99%” is not one social body, but many. Some occupiers have presented a narrative in which the “99%” is characterized as a homogenous mass. The faces intended to represent “ordinary people” often look suspiciously like the predominantly white, law-abiding middle-class citizens we’re used to seeing on television programs, even though such people make up a minority of the general population.

It’s a mistake to whitewash over our diversity. Not everyone is waking up to the injustices of capitalism for the first time now; some populations have been targeted by the power structure for years or generations. Middle-class workers who are just now losing their social standing can learn a lot from those who have been on the receiving end of injustice for much longer.

The problem isn’t just a few “bad apples.” The crisis is not the result of the selfishness of a few investment bankers; it is the inevitable consequence of an economic system that rewards cutthroat competition at every level of society. Capitalism is not a static way of life but a dynamic process that consumes everything, transforming the world into profit and wreckage. Now that everything has been fed into the fire, the system is collapsing, leaving even its former beneficiaries out in the cold. The answer is not to revert to some earlier stage of capitalism—to go back to the gold standard, for example; not only is that impossible, those earlier stages didn’t benefit the “99%” either. To get out of this mess, we’ll have to rediscover other ways of relating to each other and the world around us.

Police can’t be trusted. They may be “ordinary workers,” but their job is to protect the interests of the ruling class. As long as they remain employed as police, we can’t count on them, however friendly they might act. Occupiers who don’t know this already will learn it firsthand as soon as they threaten the imbalances of wealth and power our society is based on. Anyone who insists that the police exist to protect and serve the common people has probably lived a privileged life, and an obedient one.

Don’t fetishize obedience to the law. Laws serve to protect the privileges of the wealthy and powerful; obeying them is not necessarily morally right—it may even be immoral. Slavery was legal. The Nazis had laws too. We have to develop the strength of conscience to do what we know is best, regardless of the laws.

To have a diversity of participants, a movement must make space for a diversity of tactics. It’s controlling and self-important to think you know how everyone should act in pursuit of a better world. Denouncing others only equips the authorities to delegitimize, divide, and destroy the movement as a whole. Criticism and debate propel a movement forward, but power grabs cripple it. The goal should not be to compel everyone to adopt one set of tactics, but to discover how different approaches can be mutually beneficial.

Don’t assume those who break the law or confront police are agents provocateurs. A lot of people have good reason to be angry. Not everyone is resigned to legalistic pacifism; some people still remember how to stand up for themselves. Police violence isn’t just meant to provoke us, it’s meant to hurt and scare us into inaction. In this context, self-defense is essential.

Assuming that those at the front of clashes with the authorities are somehow in league with the authorities is not only illogical—it delegitimizes the spirit it takes to challenge the status quo, and dismisses the courage of those who are prepared to do so. This allegation is typical of privileged people who have been taught to trust the authorities and fear everyone who disobeys them.

No government—that is to say, no centralized power—will ever willingly put the needs of common people before the needs of the powerful. It’s naïve to hope for this. The center of gravity in this movement has to be our freedom and autonomy, and the mutual aid that can sustain those—not the desire for an “accountable” centralized power. No such thing has ever existed; even in 1789, the revolutionaries presided over a “democracy” with slaves, not to mention rich and poor.

That means the important thing is not just to make demands upon our rulers, but to build up the power to realize our demands ourselves. If we do this effectively, the powerful will have to take our demands seriously, if only in order to try to keep our attention and allegiance. We attain leverage by developing our own strength.

Likewise, countless past movements learned the hard way that establishing their own bureaucracy, however “democratic,” only undermined their original goals. We shouldn’t invest new leaders with authority, nor even new decision-making structures; we should find ways to defend and extend our freedom, while abolishing the inequalities that have been forced on us.

The occupations will thrive on the actions we take. We’re not just here to “speak truth to power”—when we only speak, the powerful turn a deaf ear to us. Let’s make space for autonomous initiatives and organize direct action that confronts the source of social inequalities and injustices.

Thanks for reading and scheming and acting.

May your every dream come true.

CSPD Junior Police Explorers learn early to swagger and menace like pros

2011 DIVERSITY FAIR, NOTES, PART 1- What is our police department doing with high school age “explorers?” They’re uniformed and have their own shoulder patch. Exploring what? The limits to which they impose their weight against peoples’ rights? I’m at a civic festival in Confluence Park, across from a canopy whose shade does not conceal a mass of blue uniforms, adult officers bulky with bullet-proof vests and leather, holstering all manner of law enforcement weaponry, and CSPD apprentices, skinnier for lack of the armor and accouterments, but otherwise dressed exactly like police officers, and adopting the swagger which comes of trooping the colors, emboldened by the anonymity of the requisite Ray-Bans.

I don’t know what the CSPD think they’re doing. Community outreach would be far better accomplished in t-shirt and shorts. I can’t help but think that the authority communicated by the uniforms is being abused in this setting. I’m reminded immediately of the menace which fascist youth groups projected over even their parents. These kids are strolling around the event like appointed hall monitors. Patrolling, some of them would you believe, with their thumbs looped on their leather belts. If they had clubs they’d be twirling them.

Of course, they stroll pretending it means assimilation, as if submission to authority is a normal ingredient of any balanced community. I suspect that’s what the early indoctrination “explores.”

Actually, the Explorers get their name because they’re “exploring law enforcement as a career.” Yes any profession would be something an apprentice might want to explore, but police craft is one which requires alerting the public that this uniformed person does not have full-on authority/responsibility over you. Well, responsibility is probably what they’re most concerned about.

No one should doubt the craft of policemanship bears complexities worthy of journeymen, but I’d rather recruits came into law enforcement in the more common manner, after a college education.

Well, this IS the EVERYBODY WELCOME Diversity Fair, so we can’t exclude the Fascists. But do the city’s traditionally marginalized populations really feel welcomed by such an asserted police presence? I’m thinking of the immigration-challenged circles. But in general, how welcome do you suppose Hispanic, African, or Native Americans feel with white kids semi-officially playing cop?

Presumably the Klan was excluded from invitation, like any hate-group, because it offends the hatees. Probably law enforcement should take a backseat too, and not pretend that policing be considered a cultural component of a community.

It’s given me an idea however. Maybe the point could be brought home if we injected the event with worse than these crew-cutted crackers. How about a para-militarized presence?

I’m thinking cops in riot gear, patrolling like it was no big deal. In protest situations it’s become the norm, imagine if the average non-protester were to see the face of the US police state. Would citizens be so comfortable if instead of officer friendly, or junior uniformed friendlies, the event was patrolled by storm troopers. The CSPD knows better than to expose itself like that, but imagine a riotous development to draw them out.

Or, why not assert a pseudo-authoritarian presence for them?

If not riot gear, maybe a paramilitary uniform, American dark blue, with plenty of USA insignia, the American eagle made to look a little Germanic, let’s say. Jack boots, riding pants, leather straps, and black gloves a must.

Technically, the force could pretend to be a secret service, community outreach for the NSA or the plethora of intelligence agencies. The idea would be to present a dark, ominous authority. Handing out small fliers that read “Please take no notice of us, if you’ve done no wrong, you’ve nothing to be afraid of.”

As navy stalks Gaza Freedom Flotilla, Israeli measures already effective


First among the Israeli navy’s expressed strategies to confront the international relief convoy approaching Gaza was to “pick off the participants before they could join the convoy.” Today only five of intended nine ships have made it to the rendezvous. Sailing from Ireland, the MV Rachel Corrie has been impeded by propeller trouble, while both Challenger I and II suffered irregularities with their steering hydraulics. Suspicions of sabotage are not assuaged by fact that the healthier Turkish ships were not as easily accessible to agents. Less expected was the move, with the cooperation of Greek Cyprus, to prevent key passengers of the convoy to join the ships. Most predictable: media silence.

The Israeli navy has dubbed its anti-flotilla mission “Operation Sky Winds” and released this action plan:

The planned offensive includes four stages;

1. Warning stage; the navy will try to stop the ships from reaching a “line” dubbed
as a red line, should the ships reach the designated line, they will be warned and informed that they “violate the law”.

2. Boarding and controlling the ships; should the ships fail to adhere to the demands of the navy, the navy will attack and control the eight ships carrying nearly 800 activists. The ships will then be taken to Ashdod Port and the activists will be detained in a huge tent installed for this purpose.

3. Deportation by air; Israeli soldiers and policemen would order the detained activists to sign statements accepting to be deported to their countries, and will be deported by air via the Ben Gurion Airport.

4. Arrest before deportation; those who refuse to sign deportation statements, will be arrested, sent to medical examination, then transferred to the Nahshon Brigade which belongs to the Israeli Prison Administration before being sent to Be’er Sheva Prison and likely other prisons.

They will be prosecuted and deported at a later stage.

Identity of CIA bomb victims spill forth

khost victim of CIA bomberUS forces in Afghanistan suffered an unprecedented setback this weekend when a suicide bomber was able to blow to smithereens a gathering of CIA operatives in an outpost in Khost Province. Seven agents were killed and six injured, and a great tragedy is that these covert deaths, like that of the security contractor killed with them, are not counted as official casualties of war, to weigh against the public conscience for us to wonder, was it worth it? These were professional killers and torturers whose names are now withheld to protect their families.

But some Americans –God bless them– will not be denied the deification of their downed warriors, and so some families have gone public about the loss of their mercenary kin. Thus we have names, and Facebook memorials, to the men and women who commit the clandestine crimes for which the rest of the world holds us accountable. But first, a word about what they were doing.

Forward Operating Base Chapman caught my attention because that’s the kind of military post which protects the celebrated school building projects of Greg Mortenson, and Khost Province is one of his territories. It turns out that the US Army is also busy [re]-building schools, and boasts 53 in Khost. Also, for reasons of deteriorating security, FOB Chapman was no longer housing US military, but instead was strictly for private firms contracted to the reconstruction, except now journalists are at liberty to say that the camp was always known to be “not regular” — code for CIA.

“Although Chapman was officially a camp for civilians involved in reconstruction, it was well-known locally as a CIA base. Over the past couple of years, it focused on gathering information on so-called high-value targets for drone attacks, the unmanned missile planes that have played a growing role in taking out suspected terrorists since President Barack Obama took office. The Haqqanis were their principal target.

” ‘That far forward they were almost certainly from the CIA’s paramilitary rather than analysts,’ said one agent.”

So FOB Chapman was used for a drone command post. Not controlling drones, but gathering intelligence about where to target their missiles. I’d be curious that what had been an “underground gym” for US soldiers, where the dozen CIA officers were meeting their informant/surprise-bomber, wasn’t being put to an altogether more menacing function by the CIA. Obviously on this particular occasion it was a briefing room/wake.

It’s conjectured that the CIA at FOB Chapman was targeted because the local Taliban had suffered one too many CIA drone attacks. Other accusations emerge that the CIA had recently killed Afghan detainees while in custody, in their effort to break the Haqqani network. One reporter’s source phrased it: “Those guys have recently been on a big Haqqani binge.”

The CIA is not releasing the name of the bomber, reportedly an informant “candidate,” but strangely his name is being reported in the Arabic press. He was a Jordanian doctor named Khalil Abu Hammam Mellal Al-Balawi, of the Beer Al-Saba’a family, codenamed “Abu Dajana Al-Kharasani,” a supervisor on the Al-Hisba internet forums, where so-called official al-Qaeda communications are regularly transmitted. His identity might explain how a visit with this “informant” warranted the attendance of a dozen agents, including a high ranking officer from Kabul and the Khost station chief.

The station chief was reported to have been an agent in Afghanistan for 14 years, since the days of the so-called Alec Station which was tasked with tracking the whereabouts of Osama bin Laden. She was a loving mother of three, so it’s possible her identity is being concealed until her family can be extracted from the region.

The first agent to be identified publicly was Harold Brown Jr., 37, of Bolton, Mass., whose father thought he worked for the State Department. Before the “State Department,” Brown worked for Science Applications International Corp.

The next to be identified was Scott Michael Roberson, 39, of Akron, Ohio. He was a policeman when he wasn’t a CIA security officer. Robertson co-founded the Metro Atlanta Police Emerald Society and was a member of the Iron Pigs, a national motorcycle club for police and firefighters.

Another of the CIA agents wasn’t American at all, but a member of the Jordanian royal family. The body of Capitan As-Sharif Ali bin Zeid Al Awn has been returned to Jordan with much pomp and ceremony, without an official report of the incidence of his death, the family unable to explain what he was doing in Afghanistan, except to deny accusations that he was employed by the CIA.

The lone non-CIA victim was security contractor and former Navy SEAL, Jeremy Jason Wise, 35, of Virginia Beach. Wrote the WSJ: “Today, the CIA and President Obama acknowledged that seven of those killed were CIA agents. No one would say who employed the eighth American.”

(Except he was really the seventh American, because one of the dead was a Jordanian.)

UPDATE: It’s now revealed that Jeremy Wise was employed by Xe/Blackwater, who admit now that two of the CIA victims were Blackwater.

With suicide bombers all over the news, from the successful to the pantywaist, as blogs spill over with nuke-em-all comments which reveal Americans seem perfectly comfortable with the idea that peoples are collectively accountable for the deeds of criminals among them.

Or the deeds of insurgents aka freedom fighters, about whom you or I might disagree.

US Blackwater goons for example, have been let off the hook for the Nisour Square atrocity in Iraq. According to our neoliberal world order, Iraq should be able to track miscreants with drones, and since we refuse to bring them to justice, lay waste entire American neighborhoods and schools if informants report they are nearby.

I’ve certainly always argued that Americans are all of us responsible for the crimes our government is committing. Even with our combatant criminals killed in battle, I’m not sure that the people who cheered them on don’t still owe their victims responsibility.

Drones vulnerable to P2P filesharing?

The WSJ headline screams “Insurgents Hack U.S. Drones … Iranian Backing Suspected.” Hmm. Why Iran — because insurgents can’t afford $25.99 SkyGrabber software? Captured Iraqi laptops have evidence of intercepted video feeds, not code. The hacking term is no misnomer. Instead of calling the footage “hijacked” or “received,” the data is described as “stolen” and “pirated,” which would seem to betray an inviting vulnerability to SkySoftware’s reach. Are they saying there’s a UAV feed that can be harvested by a distributed file-sharing exploit? Imagine a drone-watch network for nabbing unwarranted military surveillance: DroneWire. By going after too many birds with this story, the DoD confirms its armed unmanned vehicles are patrolling not just Iraq, Afghanistan and Pakistan, but Yemen and Somalia, where our distributed representative Democracy has no legal authority to conduct extrajudicial assassinations.

Vaneigem on energy as commodity

NMT’s in-house Situationist has been conceptualizing a way forward well expressed in this May 2009 interview of Raoul Vaneigem:
Situationist“We are being “offered” biofuels on the condition we agree to transgenic rapeseed farming. Eco-tourism will accelerate the plundering of our biosphere. Windmill farms are being built without any advantage to the consumers. Those are the areas where intervention is possible. Natural resources belong to us, they are free, they must be made to serve the freedom of life. It will be up to the communities to secure their own energy and food independence so as to free themselves from the control of the multinationals and their state vassals everywhere. Claiming natural power for our use means reclaiming our own existence first. Only creativity will rid us of work. …

Freeness is the only absolute weapon capable of shattering the mighty self-destruction machine set in motion by consumer society, whose implosion is still releasing, like a deadly gas, bottom-line mentality, cupidity, financial gain, profit, and predation. Museums and culture should be free, for sure, but so should public services, currently prey to the scamming multinationals and states. Free trains, buses, subways, free healthcare, free schools, free water, air, electricity, free power, all through alternative networks to be set up. As freeness spreads, new solidarity networks will eradicate the stranglehold of the commodity. This is because life is a free gift, a continuous creation that the market’s vile profiteering alone deprives us of.”
–Raoul Vaneigem, 2009

Interviewed by Hans Ulrich Obrist, for e-flux, Journal #6. See original article or the copy mirrored below:

In Conversation with Raoul Vaneigem

Hans Ulrich Obrist: I just visited Edouard Glissant and Patrick Chamoiseau, who have written an appeal to Barack Obama. What would your appeal and/or advice be to Obama?

Raoul Vaneigem: I refuse to cultivate any relationship whatsoever with people of power. I agree with the Zapatistas from Chiapas who want nothing to do with either the state or its masters, the multinational mafias. I call for civil disobedience so that local communities can form, coordinate, and begin self-producing natural power, a more natural form of farming, and public services that are finally liberated from the scams of government by the Left or the Right. On the other hand, I welcome the appeal by Chamoiseau, Glissant, and their friends for the creation of an existence in which the poetry of a life rediscovered will put an end to the deadly stranglehold of the commodity.

HUO: Could we talk about your beginnings? How did your participation in situationism begin, and what was your fundamental contribution? At the outset of your relationship with the SI, there was the figure of Henri Lefebvre. What did he mean to you at the time? Why did you decide to send him poetic essays?

RV: I would first like to clarify that situationism is an ideology that the situationists were unanimous in rejecting. The term “situationist” was ever only a token of identification. Its particularity kept us from being mistaken for the throngs of ideologues. I have nothing in common with the spectacular recuperation of a project that, in my case, has remained revolutionary throughout. My participation in a group that has now disappeared was an important moment in my personal evolution, an evolution I have personally pressed on with in the spirit of the situationist project at its most revolutionary. My own radicality absolves me from any label. I grew up in an environment in which our fighting spirit was fueled by working class consciousness and a rather festive conception of existence. I found Lefebvre’s Critique of Everyday Life captivating. When La Somme et le reste [The Sum and the Remainder] was published, I sent him an essay of sorts on “poetry and revolution” that was an attempt to unify radical concepts, Lettrist language, music, and film imagery by crediting them all with the common virtue of making the people’s blood boil. Lefebvre kindly responded by putting me in touch with Guy Debord who immediately invited me to Paris. The two of us had very different temperaments, but we would agree over a period of nearly ten years on the need to bring consumer society to an end and to found a new society on the principle of self-management, where life supersedes survival and the existential angst that it generates.

HUO: Which situationist projects remain unrealized?

RV: Psychogeography, the construction of situations, the superseding of predatory behavior. The radicality, which, notwithstanding some lapses, never ceased to motivate us, remains a source of inspiration to this day. Its effects are just beginning to manifest themselves in the autonomous groups that are now coming to grips with the collapse of financial capitalism.

HUO: The Situationist International defined the situationist as someone who commits her- or himself to the construction of situations. What were those situations for you, concretely? How would you define the situationist project in 2009?

RV: By its very style of living and thinking, our group was already sketching out a situation, like a beachhead active within enemy territory. The military metaphor is questionable, but it does convey our will to liberate daily life from the control and stranglehold of an economy based on the profitable exploitation of man. We formed a “group-at-risk” that was conscious of the hostility of the dominant world, of the need for radical rupture, and of the danger of giving in to the paranoia typical of minds under siege. By showing its limits and its weaknesses, the situationist experience can also be seen as a critical meditation on the new type of society sketched out by the Paris Commune, by the Makhnovist movement and the Republic of Councils wiped out by Lenin and Trotsky, by the libertarian communities in Spain later smashed by the Communist Party. The situationist project is not about what happens once consumer society is rejected and a genuinely human society has emerged. Rather, it illuminates now how lifestyle can supersede survival, predatory behavior, power, trade and the death-reflex.

HUO: You and Guy Debord are the main protagonists of the situationist movement. How do you see Debord’s role and your role?

RV: Not as roles. That is precisely what situationism in its most ridiculous version aims at: reducing us to cardboard cut-outs that it can then set up against one another according to the spectacle’s standard operating procedure. I am simply the spokesman, among others, of a radical consciousness. I just do what I can to see that resistance to market exploitation is transformed into an offensive of life, and that an art of living sweeps away the ruins of oppression.

HUO: What were your reasons for resigning from the group?

RV: Following the occupation movements of May 1968, we knew that some recuperation was afoot. We were familiar with the mechanisms of alienation that would falsify our ideas and fit them neatly into the cultural puzzle. It became clear to us, during the last conference in Venice, that we had failed to shatter those mechanisms, that in fact they were shattering us from the inside. The group was crumbling, the Venice conference was demonstrating its increasing uselessness, and the only answers put forward were commensurate with the self-parody we had fallen into. Dissension intensified to the point of paranoid denunciation: of betrayals of radicality, of breaches of revolutionary spirit, of dereliction of conscience. Those times of catharsis and anathema are now long past, and it might be useful to examine how it is that we sowed the seeds of failure for which the group ended up paying such a heavy price. The shipwreck, however, did not indiscriminately sweep away to the shores of oblivion all of us who participated in the adventure. The group vanished in such a way as to allow the individuals to either consolidate their radicality, disown it, or lapse into the imposture of radicalism. I have attempted to analyze our experimental adventure in Entre le deuil du monde et la joie de vivre [Between Mourning the World and Exuberant Life].

HUO: You have written a lot on life, not survival. What is the difference?

RV: Survival is budgeted life. The system of exploitation of nature and man, starting in the Middle Neolithic with intensive farming, caused an involution in which creativity—a quality specific to humans—was supplanted by work, by the production of a covetous power. Creative life, as had begun to unfold during the Paleolithic, declined and gave way to a brutish struggle for subsistence. From then on, predation, which defines animal behavior, became the generator of all economic mechanisms.

HUO: Today, more than forty years after May ‘68, how do you feel life and society have evolved?

RV: We are witnessing the collapse of financial capitalism. This was easily predictable. Even among economists, where one finds even more idiots than in the political sphere, a number had been sounding the alarm for a decade or so. Our situation is paradoxical: never in Europe have the forces of repression been so weakened, yet never have the exploited masses been so passive. Still, insurrectional consciousness always sleeps with one eye open. The arrogance, incompetence, and powerlessness of the governing classes will eventually rouse it from its slumber, as will the progression in hearts and minds of what was most radical about May 1968.

HUO: Your new book takes us on a trip “between mourning the world and exuberant life.” You revisit May ‘68. What is left of May ‘68? Has it all been appropriated?

RV: Even if we are today seeing recycled ideologies and old religious infirmities being patched up in a hurry and tossed out to feed a general despair, which our ruling wheelers and dealers cash in on, they cannot conceal for long the shift in civilization revealed by May 1968. The break with patriarchal values is final. We are moving toward the end of the exploitation of nature, of work, of trade, of predation, of separation from the self, of sacrifice, of guilt, of the forsaking of happiness, of the fetishizing of money, of power, of hierarchy, of contempt for and fear of women, of the misleading of children, of intellectual dominion, of military and police despotism, of religions, of ideologies, of repression and the deadly resolutions of psychic tensions. This is not a fact I am describing, but an ongoing process that simply requires from us increased vigilance, awareness, and solidarity with life. We have to reground ourselves in order to rebuild—on human foundations—a world that has been ruined by the inhumanity of the cult of the commodity.

HUO: What do you think of the current moment, in 2009? Jean-Pierre Page has just published Penser l’après crise [Thinking the After-Crisis]. For him, everything must be reinvented. He says that a new world is emerging now in which the attempt to establish a US-led globalization has been aborted.

RV: The agrarian economy of the Ancien Régime was a fossilized form that was shattered by the emerging free-trade economy, from the 1789 revolution on. Similarly, the stock-dabbling speculative capitalism whose debacle we now witness is about to give way to a capitalism reenergized by the production of non-polluting natural power, the return to use value, organic farming, a hastily patched-up public sector, and a hypocritical moralization of trade. The future belongs to self-managed communities that produce indispensable goods and services for all (natural power, biodiversity, education, health centers, transport, metal and textile production . . .). The idea is to produce for us, for our own use—that is to say, no longer in order to sell them—goods that we are currently forced to buy at market prices even though they were conceived and manufactured by workers. It is time to break with the laws of a political racketeering that is designing, together with its own bankruptcy, that of our existence.

HUO: Is this a war of a new kind, as Page claims? An economic Third World War?

RV: We are at war, yes, but this is not an economic war. It is a world war against the economy. Against the economy that for thousands of years has been based on the exploitation of nature and man. And against a patched-up capitalism that will try to save its skin by investing in natural power and making us pay the high price for that which—once the new means of production are created—will be free as the wind, the sun, and the energy of plants and soil. If we do not exit economic reality and create a human reality in its place, we will once again allow market barbarism to live on.

HUO: In his book Making Globalization Work, Joseph Stiglitz argues for a reorganization of globalization along the lines of greater justice, in order to shrink global imbalances. What do you think of globalization? How does one get rid of profit as motive and pursue well-being instead? How does one escape from the growth imperative?

RV: The moralization of profit is an illusion and a fraud. There must be a decisive break with an economic system that has consistently spread ruin and destruction while pretending, amidst constant destitution, to deliver a most hypothetical well-being. Human relations must supersede and cancel out commercial relations. Civil disobedience means disregarding the decisions of a government that embezzles from its citizens to support the embezzlements of financial capitalism. Why pay taxes to the bankster-state, taxes vainly used to try to plug the sinkhole of corruption, when we could allocate them instead to the self-management of free power networks in every local community? The direct democracy of self-managed councils has every right to ignore the decrees of corrupt parliamentary democracy. Civil disobedience towards a state that is plundering us is a right. It is up to us to capitalize on this epochal shift to create communities where desire for life overwhelms the tyranny of money and power. We need concern ourselves neither with government debt, which covers up a massive defrauding of the public interest, nor with that contrivance of profit they call “growth.” From now on, the aim of local communities should be to produce for themselves and by themselves all goods of social value, meeting the needs of all—authentic needs, that is, not needs prefabricated by consumerist propaganda.

HUO: Edouard Glissant distinguishes between globality and globalization. Globalization eradicates differences and homogenizes, while globality is a global dialogue that produces differences. What do you think of his notion of globality?

RV: For me, it should mean acting locally and globally through a federation of communities in which our pork-barreling, corrupt parliamentary democracy is made obsolete by direct democracy. Local councils will be set up to take measures in favor of the environment and the daily lives of everyone. The situationists have called this “creating situations that rule out any backtracking.”

HUO: Might the current miscarriages of globalization have the same dangerous effects as the miscarriages of the previous globalization from the ‘30s? You have written that what was already intolerable in ‘68 when the economy was booming is even more intolerable today. Do you think the current economic despair might push the new generations to rebel?

RV: The crisis of the ‘30s was an economic crisis. What we are facing today is an implosion of the economy as a management system. It is the collapse of market civilization and the emergence of human civilization. The current turmoil signals a deep shift: the reference points of the old patriarchal world are vanishing. Percolating instead, still just barely and confusedly, are the early markers of a lifestyle that is genuinely human, an alliance with nature that puts an end to its exploitation, rape, and plundering. The worst would be the unawareness of life, the absence of sentient intelligence, violence without conscience. Nothing is more profitable to the racketeering mafias than chaos, despair, suicidal rebellion, and the nihilism that is spread by mercenary greed, in which money, even devalued in a panic, remains the only value.

HUO: In his book Utopistics, Immanuel Wallerstein claims that our world system is undergoing a structural crisis. He predicts it will take another twenty to fifty years for a more democratic and egalitarian system to replace it. He believes that the future belongs to “demarketized,” free-of-charge institutions (on the model, say, of public libraries). So we must oppose the marketization of water and air.1 What is your view?

RV: I do not know how long the current transformation will take (hopefully not too long, as I would like to witness it). But I have no doubt that this new alliance with the forces of life and nature will disseminate equality and freeness. We must go beyond our natural indignation at profit’s appropriation of our water, air, soil, environment, plants, animals. We must establish collectives that are capable of managing natural resources for the benefit of human interests, not market interests. This process of reappropriation that I foresee has a name: self-management, an experience attempted many times in hostile historical contexts. At this point, given the implosion of consumer society, it appears to be the only solution from both an individual and social point of view.

HUO: In your writing you have described the work imperative as an inhuman, almost animal condition. Do you consider market society to be a regression?

RV: As I mentioned above, evolution in the Paleolithic age meant the development of creativity—the distinctive trait of the human species as it breaks free from its original animality. But during the Neolithic, the osmotic relationship to nature loosened progressively, as intensive agriculture became based on looting and the exploitation of natural resources. It was also then that religion surfaced as an institution, society stratified, the reign of patriarchy began, of contempt for women, and of priests and kings with their stream of wars, destitution, and violence. Creation gave way to work, life to survival, jouissance to the animal predation that the appropriation economy confiscates, transcends, and spiritualizes. In this sense market civilization is indeed a regression in which technical progress supersedes human progress.

HUO: For you, what is a life in progress?

RV: Advancing from survival, the struggle for subsistence and predation to a new art of living, by recreating the world for the benefit of all.

HUO: My interviews often focus on the connections between art and architecture/urbanism, or literature and architecture/urbanism. Could you tell me about the Bureau of Unitary Urbanism?

RV: That was an idea more than a project. It was about the urgency of rebuilding our social fabric, so damaged by the stranglehold of the market. Such a rebuilding effort goes hand in hand with the rebuilding by individuals of their own daily existence. That is what psychogeography is really about: a passionate and critical deciphering of what in our environment needs to be destroyed, subjected to détournement, rebuilt.

HUO: In your view there is no such thing as urbanism?

RV: Urbanism is the ideological gridding and control of individuals and society by an economic system that exploits man and Earth and transforms life into a commodity. The danger in the self-built housing movement that is growing today would be to pay more attention to saving money than to the poetry of a new style of life.

HUO: How do you see cities in the year 2009? What kind of unitary urbanism for the third millennium? How do you envision the future of cities? What is your favorite city? You call Oarystis the city of desire. Oarystis takes its inspiration from the world of childhood and femininity. Nothing is static in Oarystis. John Cage once said that, like nature, “one never reaches a point of shapedness or finishedness. The situation is in constant unpredictable change.”2 Do you agree with Cage?

RV: I love wandering through Venice and Prague. I appreciate Mantua, Rome, Bologna, Barcelona, and certain districts of Paris. I care less about architecture than about how much human warmth its beauty has been capable of sustaining. Even Brussels, so devastated by real estate developers and disgraceful architects (remember that in the dialect of Brussels, “architect” is an insult), has held on to some wonderful bistros. Strolling from one to the next gives Brussels a charm that urbanism has deprived it of altogether. The Oarystis I describe is not an ideal city or a model space (all models are totalitarian). It is a clumsy and naïve rough draft for an experiment I still hope might one day be undertaken—so I agree with John Cage. This is not a diagram, but an experimental proposition that the creation of an environment is one and the same as the creation by individuals of their own future.

HUO: Is Oarystis based on natural power, like the Metabolist cities? Rem Koolhaas and I are working on a book on the Japanese Metabolists. When I read your wonderful text on Oarystis, I was reminded of that movement from the 1960s, especially the floating cities, Kikutake’s water cities. Is Oarystis a Metabolist city?

RV: When Oarystis was published, the architect Philippe Rothier and Diane Hennebert, who ran Brussels’ Architecture Museum at the time, rightly criticized me for ignoring the imaginative projects of a new generation of builders. Now that the old world is collapsing, the fusion of free natural power, self-built housing techniques, and the reinvention of sensual form is going to be decisive. So it is useful to remember that technical inventiveness must stem from the reinvention of individual and collective life. That is to say, what allows for genuine rupture and ecstatic inventiveness is self-management: the management by individuals and councils of their own lives and environment through direct democracy. Let us entrust the boundless freedoms of the imaginary to childhood and the child within us.

HUO: Several years ago I interviewed Constant on New Babylon. What were your dialogues with Constant and how do you see New Babylon today?

RV: I never met Constant, who if I am not mistaken had been expelled before my own association with the SI. New Babylon’s flaw is that it privileges technology over the formation of an individual and collective way of life—the necessary basis of any architectural concept. An architectural project only interests me if it is about the construction of daily life.

HUO: How can the city of the future contribute to biodiversity?

RV: By drawing inspiration from Alphonse Allais, by encouraging the countryside to infiltrate the city. By creating zones of organic farming, gardens, vegetable plots, and farms inside urban space. After all, there are so many bureaucratic and parasitical buildings that can’t wait to give way to fertile, pleasant land that is useful to all. Architects and squatters, build us some hanging gardens where we can go for walks, eat, and live!

HUO: Oarystis is in the form of a maze, but it is also influenced by Venice and its public piazzas. Could you tell us about the form of Oarystis?

RV: Our internal space-time is maze-like. In it, each of us is at once Theseus, Ariadne, and Minotaur. Our dérives would gain in awareness, alertness, harmony, and happiness if only external space-time could offer meanders that could conjure up the possible courses of our futures, as an analogy or echo of sorts—one that favors games of life, and prevents their inversion into games of death.

HUO: Will museums be abolished? Could you discuss the amphitheater of memory? A protestation against oblivion?

RV: The museum suffers from being a closed space in which works waste away. Painting, sculpture, music belong to the street, like the façades that contemplate us and come back to life when we greet them. Like life and love, learning is a continuous flow that enjoys the privilege of irrigating and fertilizing our sentient intelligence. Nothing is more contagious than creation. But the past also carries with it all the dross of our inhumanity. What should we do with it? A museum of horrors, of the barbarism of the past? I attempted to answer the question of the “duty of memory” in Ni pardon, ni talion [Neither Forgiveness Nor Retribution]:

Most of the great men we were brought up to worship were nothing more than cynical or sly murderers. History as taught in schools and peddled by an overflowing and hagiographic literature is a model of falsehood; to borrow a fashionable term, it is negationist. It might not deny the reality of gas chambers, it might no longer erect monuments to the glory of Stalin, Mao or Hitler, but it persists in celebrating the brutish conqueror: Alexander, called the Great—whose mentor was Aristotle, it is proudly intoned—Julius Caesar, Genghis Khan, Tamerlane, Napoleon, the throngs of generals, slaughterers of peoples, petty tyrants of the city or the state, torturer–judges, Javerts of every ilk, conniving diplomats, rapists and killers contracted by religions and ideologies; so much high renown carved from baseness, wickedness, and abjection. I am not suggesting we should unpave the avenues of official history and pave the side alleys instead. We are not in need of a purged history, but of a knowledge that scoops out into broad daylight facts that have been obscured, generation after generation, by the unceasing stratification of prejudice. I am not calling for a tribunal of the mind to begin condemning a bunch of undesirables who have been bizarrely put up on pedestals and celebrated in the motley pantheons of official memory. I just want to see the list of their crimes, the mention of their victims, the recollection of those who confronted them added to the inventory of their unsavory eulogies. I am not suggesting that the name of Francisco Ferrer wipe out that of his murderer, Alfonso XIII, but that at the very least everything be known of both. How dare textbooks still cultivate any respect for Bonaparte, responsible for the death of millions, for Louis XIV, slaughterer of peasants and persecutor of Protestants and freethinkers? For Calvin, murderer of Jacques Gruet and Michel Servet and dictator of Geneva, whose citizens, in tribute to Sébastien Castellion, would one day resolve to destroy the emblems and signs of such an unworthy worship? While Spain has now toppled the effigies of Francoism and rescinded the street names imposed by fascism, we somehow tolerate, towering in the sky of Paris, that Sacré-Coeur whose execrable architecture glorifies the crushing of the Commune. In Belgium there are still avenues and monuments honoring King Leopold II, one of the most cynical criminals of the nineteenth century, whose “red rubber” policy—denounced by Mark Twain, by Roger Casement (who paid for this with his life), by Edward Dene Morel, and more recently by Adam Hochschild—has so far bothered nary a conscience. This is a not a call to blow up his statues or to chisel away the inscriptions that celebrate him. This is a call to Belgian and Congolese citizens to cleanse and disinfect public places of this stain, the stain of one of the worst sponsors of colonial savagery. Paradoxically, I do tend to believe that forgetting can be productive, when it comes to the perpetrators of inhumanity. A forgetting that does not eradicate remembering, that does not blue-pencil memory, that is not an enforceable judgment, but that proceeds rather from a spontaneous feeling of revulsion, like a last-minute pivot to avoid dog droppings on the sidewalk. Once they have been exposed for their inhumanity, I wish for the instigators of past brutalities to be buried in the shroud of their wrongs. Let the memory of the crime obliterate the memory of the criminal.
3

HUO: Learning is deserting schools and going to the streets. Are streets becoming Thinkbelts? Cedric Price’s Potteries Thinkbelt used abandoned railroads for pop-up schools. What and where is learning today?

RV: Learning is permanent for all of us regardless of age. Curiosity feeds the desire to know. The call to teach stems from the pleasure of transmitting life: neither an imposition nor a power relation, it is pure gift, like life, from which it flows. Economic totalitarianism has ripped learning away from life, whose creative conscience it ought to be. We want to disseminate everywhere this poetry of knowledge that gives itself. Against school as a closed-off space (a barrack in the past, a slave market nowadays), we must invent nomadic learning.

HUO: How do you foresee the twenty-first-century university?

RV: The demise of the university: it will be liquidated by the quest for and daily practice of a universal learning of which it has always been but a pale travesty.

HUO: Could you tell me about the freeness principle (I am extremely interested in this; as a curator I have always believed museums should be free—Art for All, as Gilbert and George put it).

RV: Freeness is the only absolute weapon capable of shattering the mighty self-destruction machine set in motion by consumer society, whose implosion is still releasing, like a deadly gas, bottom-line mentality, cupidity, financial gain, profit, and predation. Museums and culture should be free, for sure, but so should public services, currently prey to the scamming multinationals and states. Free trains, buses, subways, free healthcare, free schools, free water, air, electricity, free power, all through alternative networks to be set up. As freeness spreads, new solidarity networks will eradicate the stranglehold of the commodity. This is because life is a free gift, a continuous creation that the market’s vile profiteering alone deprives us of.

HUO: Where is love in Oarystis?

RV: Everywhere. The love affair, as complex as it is simple, will serve as the building block for the new solidarity relations that sooner or later will supersede selfish calculation, competition, competitiveness, and predation, causes of our societies’ dehumanization.

HUO: Where is the city of the dead? In a forest rather than a cemetery?

RV: Yes, a forest, an auditorium in which the voices of the dead will speak amidst the lushness of nature, where life continuously creates itself anew.

HUO: Have you dreamt up other utopian cities apart from Oarystis? Or a concrete utopia in relation to the city?

RV: No, but I have not given up hope that such projects might mushroom and be realized one day, as we begin reconstructing a world devastated by the racketeering mafias.

HUO: In 1991 I founded a Robert Walser museum, a strollological museum, in Switzerland. I have always been fascinated by your notion of the stroll. Could you say something about your urban strolls with and without Debord? What about Walser’s? Have other strollologists inspired you?

RV: I hold Robert Walser in high regard, as many do. His lucidity and sense of dérive enchanted Kafka. I have always been fascinated by the long journey Hölderlin undertook following his break-up with Diotima. I admire Chatwin’s Songlines, in which he somehow manages to turn the most innocuous of walks into an intonation of the paths of fate, as though we were in the heart of the Australian bush. And I appreciate the strolls of Léon-Paul Fargue and the learning of Héron de Villefosse. My psychogeographic dérives with Guy Debord in Paris, Barcelona, Brussels, Beersel, and Antwerp were exceptional moments, combining theoretical speculation, sentient intelligence, the critical analysis of beings and places, and the pleasure of cheerful drinking. Our homeports were pleasant bistros with a warm atmosphere, havens where one was oneself because one felt in the air something of the authentic life, however fragile and short-lived. It was an identical mood that guided our wanderings through the streets, the lanes and the alleys, through the meanderings of a pleasure that our every step helped us gauge in terms of what it might take to expand and refine it just a little further. I have a feeling that the neighborhoods destroyed by the likes of Haussmann, Pompidou, and the real estate barbarians will one day be rebuilt by their inhabitants in the spirit of the joy and the life they once harbored.

HUO: What possibilities do you see for disalienation and détournement in 2009?

RV: This is a time of unprecedented chaos in material and moral conditions. Human values are going to have to compensate for the effects of the only value that has prevailed so far: money. But the implosion of financial totalitarianism means that this currency, which has so tripped us up, is now doomed to devaluation and a loss of all meaning. The absurdity of money is becoming concrete. It will gradually give way to new forms of exchange that will hasten its disappearance and lead to a gift economy.

HUO: What are the conditions for dialogue in 2009? Is there a way out of this system of isolation?

RV: Dialogue with power is neither possible nor desirable. Power has always acted unilaterally, by organizing chaos, by spreading fear, by forcing individuals and communities into selfish and blind withdrawal. As a matter of course, we will invent new solidarity networks and new intervention councils for the well-being of all of us and each of us, overriding the fiats of the state and its mafioso-political hierarchies. The voice of lived poetry will sweep away the last remaining echoes of a discourse in which words are in profit’s pay.

HUO: In your recent books you discuss your existence and temporality. The homogenizing forces of globalization homogenize time, and vice versa. How does one break with this? Could you discuss the temporality of happiness, as a notion?

RV: The productivity- and profit-based economy has implanted into lived human reality a separate reality structured by its ruling mechanisms: predation, competition and competitiveness, acquisitiveness and the struggle for power and subsistence. For thousands of years such denatured human behaviors have been deemed natural. The temporality of draining, erosion, tiredness, and decay is determined by labor, an activity that dominates and corrupts all others. The temporality of desire, love, and creation has a density that fractures the temporality of survival cadenced by work. Replacing the temporality of money will be a temporality of desire, a beyond-the-mirror, an opening to uncharted territories.

HUO: Is life ageless?

RV: I don’t claim that life is ageless. But since survival is nothing but permanent agony relieved by premature death, a renatured life that cultivates its full potential for passion and creation would surely achieve enough vitality to delay its endpoint considerably.

HUO: The Revolution of Everyday Life was a trigger for May ’68, and you have stated in other interviews that it is your key book that you are continually rewriting. Was the book an epiphany? How did it change the course of your work? What had you been doing previously?

RV: The book was prompted by an urgent need I was feeling at the time for a new perspective on the world and on myself, to pull me out of my state of survival, by means other than through suicide. This critical take on a consumer society that was corrupting and destroying life so relentlessly made me aware and conscious of my own life drive. And it became clear to me very quickly that this wasn’t a purely solipsistic project, that many readers were finding their own major concerns echoed there.

HUO: The Revolution of Everyday Life ends on an optimistic note: “We have a world of pleasures to win, and nothing to lose but boredom.”4 Are you still an optimist today?

RV: “Pessimists, what is it you were hoping for?,” Scutenaire wrote. I am neither a pessimist nor an optimist. I try to remain faithful to a principle: desire everything, expect nothing.

HUO: What is the most recent version of the book?

RV: Entre le deuil du monde et la joie de vivre [Between Mourning the World and Exuberant Life].

HUO: What book are you working on at the moment?

RV: I would love to have the resources to complete a Dictionary of Heresies, so as to clarify and correct the historical elements included in The Movement of the Free Spirit and Resistance to Christianity.

HUO: The question of temporality also brings us to Proust and his questionnaire (see inset). What might your definition of happiness be in 2009?

RV: Living ever more intensely and passionately in an ever more intense world. To those who sneer at my ecstatic candor, I reply with a phrase that brings me great comfort: “The desire for an other life is that life already.”5

HUO: Do you have unrealized projects? Unrealized books, unrealized projects in fields other than writing, unrealized architectural projects?

RV: My priority is to live better and better in a world that is more and more human. I would love to build the “urban countryside” of Oarystis, but I’m not just waiting patiently, like Fourier at the Palais Royal, for some billionaire to decide to finance the project only to lose everything to the financial crash a minute later.

HUO: What about your collaborations with other artists, painters, sculptors, designers, filmmakers?

RV: I don’t collaborate with anyone. At times I have offered a few texts to artist friends, not as a commentary on their work but as a counterpoint to it. Art moves me when, in it, I can sense its own overcoming, something that goes beyond it; when it nurtures a trace of life that blossoms as a true aspiration, the intuition of a new art of living.

HUO: Could you tell me about Brussels? What does Brussels mean to you? Where do you write?

RV: I live in the country, facing a garden and woods where the rhythm of the seasons has retained its beauty. Brussels as a city has been destroyed by urbanists and architects who are paid by real estate developers. There are still a few districts suitable for nice walks. I am fond of a good dozen wonderful cafés where one can enjoy excellent artisanal beers.

HUO: Do you agree with Geremek’s view that Europe is the big concern of the twenty-first century?

RV: I am not interested in this Europe ruled by racketeering bureaucracies and corrupt democracies. And regions only interest me once they are stripped of their regionalist ideology and are experiencing self-management and direct democracy. I feel neither Belgian nor European. The only homeland is a humanity that is at long last sovereign.

HUO: You have used a lot of pseudonyms. Je est un autre [I is an other]? How do you find or choose pseudonyms? How many pseudonyms have you used? Is there a complete list?

RV: I don’t keep any kind of score. I leave it up to the inspiration of the moment. There is nothing secret about using a pseudonym. Rather, it is about creating a distance, most often in commissioned work. This allows me to have some fun while alleviating my enduring financial difficulties, which I have always refused to resolve by compromising with the world of the spectacle.

HUO: A book that has been used by many artists and architects has been your Dictionnaire de citations pour servir au divertissement et a l’intelligence du temps [Dictionary of Quotations for the Entertainment and Intelligence of Our Time]. Where did that idea come from?

RV: It was a suggestion from my friend Pierre Drachline, who works for the Cherche Midi publishing house.

HUO: You have often criticized environmental movements who try to replace existing capitalism with capitalism of a different type. What do you think of Joseph Beuys? What non-capitalist project or movement do you support?

RV: We are being “offered” biofuels on the condition we agree to transgenic rapeseed farming. Eco-tourism will accelerate the plundering of our biosphere. Windmill farms are being built without any advantage to the consumers. Those are the areas where intervention is possible. Natural resources belong to us, they are free, they must be made to serve the freedom of life. It will be up to the communities to secure their own energy and food independence so as to free themselves from the control of the multinationals and their state vassals everywhere. Claiming natural power for our use means reclaiming our own existence first. Only creativity will rid us of work.

HUO: Last but not least, Rilke wrote that wonderful little book of advice to a young poet. What would your advice be to a young philosopher-writer in 2009?

RV: To apply to his own life the creativity he displays in his work. To follow the path of the heart, of what is most alive in him.

Translated from the French by Eric Anglès

Iraq slipper thrower killed outright

US-patrol-fallujah-fallouja-falluja-iraqPoor Ahmed Latif, killed in Fallujah this week for throwing his slipper at a US patrol. News reports are calling Latif a copycat of Muntadhar al-Zaidi, on the occasion of the Iraqi shoe thrower’s release from custody. Reporters are also suggesting Latif was “mentally disturbed,” instead of simply profoundly disturbed, by a development that might disturb you too.

First however, a disturbing aspect of this incident which reporters are downplaying and which Latif lived but only briefly to experience. The US soldiers fired on Latif because they thought he’d thrown a grenade. What he threw never exploded, and in fact we only know it was a slipper because bystanders saw it, and because Latif had only one slipper when he was taken to the hospital. The American soldiers couldn’t confirm the account themselves because they hadn’t even looked for whatever came at them that didn’t explode. When the soldiers fired on Latif, he ran. Eventually their bullets overtook him.

What disturbed the now late Latif, enough to prompt him to defy the US soldiers with his slipper, was seeing an American patrol drive down the streets of Fallujah.

Maybe we think that indignation at US occupiers is commonplace in Iraq, and that Iraqis should be practiced by now at repressing their proud urge to throw down insults at hair-trigger Americans. Why now? Why Latif?

The thirty two year-old Latif was so angry to see the American patrol in Fallujah, because he thought that Iraqi cities were no longer under the jurisdiction of American troops. You probably thought that too.

Yet here they were patrolling Ahmed Latif’s neighborhood. Have you been told the US soldiers are still patrolling Fallujah? If Latif’s death can count for something, it can at least serve to alert you that American in Iraq have not moved out of the cities. But the media telling of the late slipper-thrower’s deed, are not elaborating on that detail.

Neocons push for Iran war as US National Intelligence Director, Dennis Blair, calls them liars

Dennis BlairIran ‘has no bomb-grade uranium’ says the US NI Director, Dennis Blair, to Congress. Oops…. The Barack Obama Administration sure knows how to talk out of both sides of its mouth at one time! Well which is it? WOMD Lie Time once again, or is it Peace Talk Way we’ll be strolling down?

A huge military-industrial-governmental complex needs to know which? They’re hardly ‘inquiring minds’ but their jobs hang on the decision and jobs are hard to get these days. More war, or time out?

Current slaughter in Sri Lanka is part of the spread of war into the greater region

sri-lanka-victimThe struggle for justice for the Tamil community in both India and Sri Lanka has taken place for many long decades and at a great loss of live, and like the struggle for justice in Kashmir, has seen the entire world hardly take the slightest notice. The Tamil people have failed to create a celebrity cause like Darfur and Tibet have become here in the US.

Instead, they have fallen victim to slaughter by State Terrorism much like the peoples of Kashmir, Peru (with the suppression of the Sendero Luminoso by the US-Peruvian governments), and Colombia (with it s decades long death squad massacres promoted by the US-Colombian government) have also suffered tens of thousands of casualties. And how many peoples in Africa have suffered similarly without anybody batting an eye in either Europe or the English speaking countries? The Tamil have probably lost 100,000 in their struggle for self determination of their communities in Sri Lanka alone.

Now, the world government enablers of the Sri Lanka slaughter have stepped in with their typical show of humanitarianism at the last moment in the ongoing slaughter with pleas to help the civilians! Sri Lanka Tigers urged to end war What a sad situation.

However, these same countries that are ‘urging and end to war’ in Sri Lanka are actively part of the US’s spread of war into Afghanistan, Pakistan, and into possibly the entire Indian sub-continent, if the US manages to heat up more the Pakistan-India conflicts with its so-called Global War on Terrorism, a war against shadows that merely serves to feed the US military-industrial complex’s welfare-guzzling operations.

Though the American population is hardly aware of this fact, the US and Indian governments have been increasingly allying their special interests together against what both governments conceive of as common political enemies in Asia. Neither governments are actually concerned at all about this conflict in Sri Lanka, as long as the slaughter is not of such a proportion as to detract from their goals of aggressively pursuing regional conflicts in other arenas of the area.

India, for example, must have good enough press to be able to quietly fight ‘pirates’ for the US in the Indian Ocean region that extends to Somalia. Tens of thousands of deaths in nearby Sri Lanka certainly will not help things here for India. And certainly might make it look nastier for the US’s military public relation’s team as the Pentagon pops civilians in Pakistan on a weekly basis.

One thing for the world to keep in mind, is that the more slaughter that occurs in the Indian sub-continent region, the more unstable becomes the nuclear caches of India and Pakistan, too. It ups the ante about how much bloodshed could possibly be effective or not in achieving sectarian goals.

Meanwhile, let us wish the best for the Tamil people who are suffering so because the dominant Sinhalese of Sri Lanka so little want to share power with the people they share the land with. In that there is similarity to the Middle East itself, where a dominant and controlling group of people care not the least to share power with their victims either.

Weathermen for a Democratic Society

Bernadine Dohrn addresses S.D.S. in ChicagoIn 1969, the Radical Youth Movement (RYM) within Students for a Democratic Society (SDS) expelled the passive participants to reconfigure the SDS to Bring the War Home. At left, Bernardine Dohrn uninvites the Progressive Labor Party (PL) and the Worker Student Alliance (WSA) from the Chicago conference. Below is the founding document after which the RYM was renamed.

You Don’t Need A Weatherman
To Know Which Way The Wind Blows

June 18, 1969

Submitted by Karin Asbley, Bill Ayers, Bernardine Dohrn, John Jacobs, Jeff Jones, Gerry Long, Home Machtinger, Jim Mellen, Terry Robbins, Mark Rudd and Steve Tappis.

I. International Revolution

The contradiction between the revolutionary peoples of Asia, Africa and Latin America and the imperialists headed by the United States is the principal contradiction in the contemporary world. The development of this contradiction is promoting the struggle of the people of the whole world against US imperialism and its lackeys.

Lin Piao, Long Live the Victory of People’s War!

People ask, what is the nature of the revolution that we talk about- Who will it be made by, and for, and what are its goals and strategy-

The overriding consideration in answering these questions is that the main struggle going on in the world today is between US imperialism and the national liberation struggles against it. This is essential in defining political matters in the whole world: because it is by far the most powerful, every other empire and petty dictator is in the long run dependent on US imperialism, which has unified, allied with, and defended all of the reactionary forces of the whole world. Thus, in considering every other force or phenomenon, from Soviet imperialism or Israeli imperialism to “workers struggle” in France or Czechoslovakia, we determine who are our friends and who are our enemies according to whether they help US imperialism or fight to defeat it.

So the very first question people in this country must ask in considering the question of revolution is where they stand in relation to the United States as an oppressor nation, and where they stand in relation to the masses of people throughout the world whom US imperialism is oppressing.

The primary task of revolutionary struggle is to solve this principal contradiction on the side of the people of the world. It is the oppressed peoples of the world who have created the wealth of this empire and it is to them that it belongs; the goal of the revolutionary struggle must be the control and use of this wealth in the interests of the oppressed peoples of the world.

It is in this context that we must examine the revolutionary struggles in the United States. We are within the heartland of a worldwide monster, a country so rich from its worldwide plunder that even the crumbs doled out to the enslaved masses within its borders provide for material existence very much above the conditions of the masses of people of the world. The US empire, as a worldwide system, channels wealth, based upon the labor and resources of the rest of the world, into the United States. The relative affluence existing in the United States is directly dependent upon the labor and natural resources of the Vietnamese, the Angolans, the Bolivians and the rest of the peoples of the Third World. All of the United Airlines Astrojets, all of the Holiday Inns, all of Hertz’s automobiles, your television set, car and wardrobe already belong, to a large degree to the people of the rest of the world.

Therefore, any conception of “socialist revolution” simply in terms of the working people of the United States, failing to recognize the full scope of interests of the most oppressed peoples of the world, is a conception of a fight for a particular privileged interest, and is a very dangerous ideology. While the control and use of the wealth of the Empire for the people of the whole world is also in the interests of the vast majority of the people in this country, if the goal is not clear from the start we will further the preservation of class society, oppression, war, genocide, and the complete emiseration of everyone, including the people of the US.

The goal is the destruction of US imperialism and the achievement of a classless world: world communism. Winning state power in the US will occur as a result of the military forces of the US overextending themselves around the world and being defeated piecemeal; struggle within the US will be a vital part of this process, but when the revolution triumphs in the US it will have been made by the people of the whole world. For socialism to be defined in national terms within so extreme and historical an oppressor nation as this is only imperialist national chauvinism on the part of the “movement.”

II. What Is The Black Colony-

Not every colony of people oppressed by imperialism lies outside the boundaries of the US. Black people within North America, brought here 400 years ago as slaves and whose labor, as slaves, built this country, are an internal colony within the confines of the oppressor nation. What this means is that black people are oppressed as a whole people, in the institutions and social relations of the country, apart from simply the consideration of their class position, income, skill, etc., as individuals- What does this colony look like- What is the basis for its common oppression and why is it important-

One historically important position has been that the black colony only consists of the black belt nation in the South, whose fight for national liberation is based on a common land, culture, history and economic life. The corollary of this position is that black people in the rest of the country are a national minority but not actually part of the colony themselves; so the struggle for national liberation is for the black belt, and not all blacks; black people in the north, not actually part of the colony, are part of the working class of the white oppressor nation. In this formulation northern black workers have a “dual role”—one an interest in supporting the struggle in the South, and opposing racism, as members of the national minority; and as northern “white nation” workers whose class interest is in integrated socialism in the north. The consistent version of this line actually calls for integrated organizing of black and white workers in the north along what it calls “class” lines.

This position is wrong; in reality, the black colony does not exist simply as the “black belt nation,” but exists in the country as a whole. The common oppression of black people and the common culture growing out of that history are not based historically or currently on their relation to the territory of the black belt, even though that has been a place of population concentration and has some very different characteristics than the north, particularly around the land question.

Rather, the common features of oppression, history and culture which unify black people as a colony (although originating historically in a common territory apart from the colonizers, i.e., Africa, not the South) have been based historically on their common position as slaves, which since the nominal abolition of slavery has taken the form of caste oppression, and oppression of black people as a people everywhere that they exist. A new black nation, different from the nations of Africa from which it came, has been forged by the common historical experience of importation and slavery and caste oppression; to claim that to be a nation it must of necessity now be based on a common national territory apart from the colonizing nation is a mechanical application of criteria which were and are applicable to different situations.

What is specifically meant by the term caste is that all black people, on the basis of their common slave history, common culture and skin color are systematically denied access to particular job categories (or positions within job categories), social position, etc., regardless of individual skills, talents, money or education. Within the working class, they are the most oppressed section; in the petit bourgeoisie, they are even more strictly confined to the lowest levels. Token exceptions aside, the specific content of this caste oppression is to maintain black people in the most exploitative and oppressive jobs and conditions. Therefore, since the lowest class is the working class, the black caste is almost entirely a caste of the working class, or [holds] positions as oppressed as the lower working-class positions (poor black petit bourgeoisie and farmers); it is a colonial labor caste,, a colony whose common national character itself is defined by their common class position.

Thus, northern blacks do not have a “dual interest”—as blacks on the one hand and “US-nation workers” on the other. They have a single class interest, along with all other black people in the US, as members of the Black Proletarian Colony.

III. The Struggle For Socialist Self-Determination

The struggle of black people—as a colony—is for self-determination, freedom, and liberation from US imperialism. Because blacks have been oppressed and held in an inferior social position as a people, they have a right to decide, organize and act on their common destiny as a people apart from white interference. Black self-determination does not simply apply to determination of their collective political destiny at some future time. It is directly tied to the fact that because all blacks experience oppression in a form that no whites do, no whites are in a position to fully understand and test from their own practice the real situation black people face and the necessary response to it. This is why it is necessary for black people to organize separately and determine their actions separately at each stage of the struggle.

It is important to understand the implications of this. It is not legitimate for whites to organizationally intervene in differences among revolutionary black nationalists. It would be arrogant for us to attack any black organization that defends black people and opposes imperialism in practice. But it is necessary to develop a correct understanding of the Black Liberation struggle within our own organization, where an incorrect one will further racist practice in our relations with the black movement.

In the history of some external colonies, such as China and Vietnam, the struggle for self-determination has had two stages: (1) a united front against imperialism and for New Democracy (which is a joint dictatorship of anti-colonial classes led by the proletariat, the content of which is a compromise between the interests of the proletariat and nationalist peasants, petit bourgeoisie and national bourgeoisie); and (2) developing out of the new democratic stage, socialism.

However, the black liberation struggle in this country will have only one “stage”; the struggle for self-determination will embody within it the struggle for socialism.

As Huey P. Newton has said, “In order to be a revolutionary nationalist, you would of necessity have to be a socialist.” This is because—given the caste quality of oppression-as-a-people-through-a-common-degree-of-exploitation—self-determination requires being free from white capitalist exploitation in the form of inferior (lower caste) jobs, housing, schools, hospitals, prices. In addition, only what was or became in practice a socialist program for self-determination—one which addressed itself to reversing this exploitation—could win the necessary active mass support in the “proletarian colony.”

The program of a united front for new democracy, on the other hand, would not be as thorough, and so would not win as active and determined support from the black masses. The only reason for having such a front would be where the independent petit bourgeois forces which it would bring in would add enough strength to balance the weakening of proletarian backing. This is not the case: first, because much of the black petit bourgeoisie is actually a “comprador” petit bourgeoisie (like so-called black capitalists who are promoted by the power structure to seem independent but are really agents of white monopoly capital), who would never fight as a class for any real self-determination; and secondly, because many black petit bourgeoisie, perhaps most, while not having a class interest in socialist self-determination, are close enough to the black masses in the oppression and limitations on their conditions that they will support many kinds of self-determination issues, and, especially when the movement is winning, can be won to support full (socialist) self-determination. For the black movement to work to maximize this support from the petit bourgeoisie is correct; but it is in no way a united front where it is clear that the Black Liberation Movement should not and does not modify the revolutionary socialist content of its stand to win that support.

From /New Left Notes/, June 18, 1969

IV. Black Liberation Means Revolution

What is the relationship of the struggle for black self-determination to the whole worldwide revolution to defeat US imperialism and internationalize its resources toward the goal of creating a classless world-

No black self-determination could be won which would not result in a victory for the international revolution as a whole. The black proletarian colony, being dispersed as such a large and exploited section of the work force, is essential to the survival of imperialism. Thus, even if the black liberation movement chose to try to attain self-determination in the form of a separate country (a legitimate part of the right to self-determination), existing side by side with the US, imperialism could not survive if they won it—and so would never give up without being defeated. Thus, a revolutionary nationalist movement could not win without destroying the state power of the imperialists; and it is for this reason that the black liberation movement, as a revolutionary nationalist movement for self-determination, is automatically in and of itself an inseparable part of the whole revolutionary struggle against US imperialism and for international socialism.

However, the fact that black liberation depends on winning the whole revolution does not mean that it depends on waiting for and joining with a mass white movement to do it. The genocidal oppression of black people must be ended, and does not allow any leisure time to wait; if necessary, black people could win self-determination, abolishing the whole imperialist system and seizing state power to do it, without this white movement, although the cost among whites and blacks both would be high.

Blacks could do it alone if necessary because of their centralness to the system, economically and geo-militarily, and because of the level of unity, commitment, and initiative which will be developed in waging a people’s war for survival and national liberation. However, we do not expect that they will have to do it alone, not only because of the international situation, but also because the real interests of masses of oppressed whites in this country lie with the Black Liberation struggle, and the conditions for understanding and fighting for these interests grow with the deepening of the crises. Already, the black liberation movement has carried with it an upsurge of revolutionary consciousness among white youth; and while there are no guarantees, we can expect that this will extend and deepen among all oppressed whites.

To put aside the possibility of blacks winning alone leads to the racist position that blacks should wait for whites and are dependent on whites acting for them to win. Yet the possibility of blacks winning alone cannot in the least be a justification for whites failing to shoulder the burden of developing a revolutionary movement among whites. If the first error is racism by holding back black liberation, this would be equally racist by leaving blacks isolated to take on the whole fight—and the whole cost—for everyone.

It is necessary to defeat both racist tendencies: (1) that blacks shouldn’t go ahead with making the revolution, and (2) that blacks should go ahead alone with making it. The only third path is to build a white movement which will support the blacks in moving as fast as they have to and are able to, and still itself keep up with that black movement enough so that white revolutionaries share the cost and the blacks don’t have to do the whole thing alone. Any white who does not follow this third path is objectively following one of the other two (or both) and is objectively racist.

V. Anti-Imperialist Revolution And The United Front

Since the strategy for defeating imperialism in semi-feudal colonies has two stages, the new democratic stage of a united front to throw out imperialism and then the socialist stage, some people suggest two stages for the US too—one to stop imperialism, the anti-imperialist stage, and another to achieve the dictatorship of the proletariat, the socialist stage. It is no accident that even the proponents of this idea can’t tell you what it means. In reality, imperialism is a predatory international stage of capitalism. Defeating imperialism within the US couldn’t possibly have the content, which it could in a semi-feudal country, of replacing imperialism with capitalism or new democracy; when imperialism is defeated in the US, it will be replaced by socialism—nothing else. One revolution, one replacement process, one seizure of state power—the anti-imperialist revolution and the socialist revolution, one and the same stage. To talk of this as two separate stages, the struggle to overthrow imperialism and the struggle for socialist revolution, is as crazy as if Marx had talked about the proletarian socialist revolution as a revolution of two stages, one the overthrow of capitalist state power, and second the establishment of socialist state power.

Along with no two stages, there is no united front with the petit bourgeoisie, because its interests as a class aren’t for replacing imperialism with socialism. As far as people within this country are concerned, the international war against imperialism is the same task as the socialist revolution, for one overthrow of power here. There is no “united front” for socialism here.

One reason people have considered the “united front” idea is the fear that if we were talking about a one-stage socialist revolution we would fail to organize maximum possible support among people, like some petit bourgeoisie, who would fight imperialism on a particular issue, but weren’t for revolution. When the petit bourgeoisie’s interest is for fighting imperialism on a particular issue, but not for overthrowing it and replacing it with socialism, it is still contributing to revolution to that extent—not to some intermediate thing which is not imperialism and not socialism. Someone not for revolution is not for actually defeating imperialism either, but we still can and should unite with them on particular issues. But this is not a united front (and we should not put forth some joint “united front” line with them to the exclusion of our own politics), because their class position isn’t against imperialism as a system. In China, or Vietnam, the petit bourgeoisie’s class interests could be for actually winning against imperialism; this was because their task was driving it out, not overthrowing its whole existence. For us here, “throwing it out” means not from one colony, but all of them, throwing it out of the world, the same thing as overthrowing it.

VI. International Strategy

What is the strategy of this international revolutionary movement- What are the strategic weaknesses of the imperialists which make it possible for us to win- Revolutionaries around the world are in general agreement on the answer, which Lin Piao describes in the following way:

US imperialism is stronger, but also more vulnerable, than any imperialism of the past. It sets itself against the people of the whole world, including the people of the United States. Its human, military, material and financial resources are far from sufficient for the realization of its ambition of domination over the whole world. US imperialism has further weakened itself by occupying so many places in the world, overreaching itself, stretching its fingers out wide and dispersing its strength, with its rear so far away and its supply lines so long.

—/Long Live the Victory of People’s War/

The strategy which flows from this is what Ché called “creating two, three, many Vietnams”—to mobilize the struggle so sharply in so many places that the imperialists cannot possibly deal with it all. Since it is essential to their interests, they will try to deal with it all, and will be defeated and destroyed in the process.

In defining and implementing this strategy, it is clear that the vanguard (that is, the section of the people who are in the forefront of the struggle and whose class interests and needs define the terms and tasks of the revolution) of the “American Revolution” is the workers and oppressed peoples of the colonies of Asia, Africa and Latin America. Because of the level of special oppression of black people as a colony, they reflect the interests of the oppressed people of the world from within the borders of the United States; they are part of the Third World and part of the international revolutionary vanguard.

The vanguard role of the Vietnamese and other Third World countries in defeating US imperialism has been clear to our movement for some time. What has not been so clear is the vanguard role black people have played, and continue to play, in the development of revolutionary consciousness and struggle within the United States. Criticisms of the black liberation struggle as being “reactionary” or of black organizations on campus as being conservative or “racist” very often express this lack of understanding. These ideas are incorrect and must be defeated if a revolutionary movement is going to be built among whites.

The black colony, due to its particular nature as a slave colony, never adopted a chauvinist identification with America as an imperialist power, either politically or culturally. Moreover, the history of black people in America has consistently been one of the greatest overall repudiations of and struggle against the state. From the slave ships from Africa to the slave revolts, the Civil War, etc., black people have been waging a struggle for survival and liberation. In the history of our own movement this has also been the case: the civil rights struggles, initiated and led by blacks in the South; the rebellions beginning with Harlem in 1964 and Watts in 1965 through Detroit and Newark in 1967; the campus struggles at all-black schools in the South and struggles led by blacks on campuses all across the country. As it is the blacks—along with the Vietnamese and other Third World people—who are most oppressed by US imperialism, their class interests are most solidly and resolutely committed to waging revolutionary struggle through to its completion. Therefore it is no surprise that time and again, in both political content and level of consciousness and militancy, it has been the black liberation movement which has upped the ante and defined the terms of the struggle.

What is the relationship of this “black vanguard” to the “many Vietnams” around the world- Obviously this is an example of our strategy that different fronts reinforce each other. The fact that the Vietnamese are winning weakens the enemy, advancing the possibilities for the black struggle, etc. But it is important for us to understand that the interrelationship is more than this. Black people do not simply “choose” to intensify their struggle because they want to help the Vietnamese, or because they see that Vietnam heightens the possibilities for struggle here. The existence of any one Vietnam, especially a winning one, spurs on others not only through consciousness and choice, but through need, because it is a political and economic, as well as military, weakening of capitalism, and this means that to compensate, the imperialists are forced to intensify their oppression of other people.

Thus the loss of China and Cuba and the loss now of Vietnam not only encourages other oppressed peoples (such as the blacks) by showing what the alternative is and that it can be won, but also costs the imperialists billions of dollars which they then have to take out of the oppression of these other peoples. Within this country increased oppression falls heavier on the most oppressed sections of the population, so that the condition of all workers is worsened through rising taxes, inflation and the fall of real wages, and speedup. But this increased oppression falls heaviest on the most oppressed, such as poor white workers and, especially, the blacks, for example through the collapse of state services like schools, hospitals and welfare, which naturally hits the hardest at those most dependent on them.

This deterioration pushes people to fight harder to even try to maintain their present level. The more the ruling class is hurt in Vietnam, the harder people will be pushed to rebel and to fight for reforms. Because there exist successful models of revolution in Cuba, Vietnam, etc., these reform struggles will provide a continually larger and stronger base for revolutionary ideas. Because it needs to maximize profits by denying the reforms, and is aware that these conditions and reform struggles will therefore lead to revolutionary consciousness, the ruling class will see it more and more necessary to come down on any motion at all, even where it is not yet highly organized or conscious. It will come down faster on black people, because their oppression is increasing fastest, and this makes their rebellion most thorough and most dangerous, and fastest growing. It is because of this that the vanguard character and role of the black liberation struggle will be increased and intensified, rather than being increasingly equal to and merged into the situation and rebellion of oppressed white working people and youth. The crises of imperialism (the existence of Vietnam and especially that it’s winning) will therefore create a “Black Vietnam” within the US.

Given that black self-determination would mean fully crushing the power of the imperialists, this “Vietnam” has certain different characteristics than the external colonial wars. The imperialists will never “get out of the US” until their total strength and every resource they can bring to bear has been smashed; so the Black Vietnam cannot win without bringing the whole thing down and winning for everyone. This means that this war of liberation will be the most protracted and hardest fought of all.

It is in this context that the question of the South must be dealt with again, not as a question of whether or not the black nation, black colony, exists there, as opposed to in the North as well, but rather as a practical question of strategy and tactics: Can the black liberation struggle—the struggle of all blacks in the country—gain advantage in the actual war of liberation by concentrating on building base areas in the South in territory with a concentration of black population-

This is very clearly a different question than that of “where the colony is,” and to this question the “yes” answer is an important possibility. If the best potential for struggle in the South were realized, it is fully conceivable and legitimate that the struggle there could take on the character of a fight for separation; and any victories won in that direction would be important gains for the national liberation of the colony as a whole. However, because the colony is dispersed over the whole country, and not just located in the black belt, winning still means the power and liberation of blacks in the whole country.

Thus, even the winning of separate independence in the South would still be one step toward self-determination, and not equivalent to winning it; which, because of the economic position of the colony as a whole, would still require overthrowing the state power of the imperialists, taking over production and the whole economy and power, etc.

VII. The Revolutionary Youth Movement: Class Analysis

The revolutionary youth movement program was hailed as a transition strategy, which explained a lot of our past work and pointed to new directions for our movement. But as a transition to what- What was our overall strategy- Was the youth movement strategy just an organizational strategy because SDS is an organization of youth and we can move best with other young people-

We have pointed to the vanguard nature of the black struggle in this country as part of the international struggle against American imperialism, and the impossibility of anything but an international strategy for winning. Any attempt to put forth a strategy which, despite internationalist rhetoric, assumes a purely internal development to the class struggle in this country, is incorrect. The Vietnamese (and the Uruguayans and the Rhodesians) and the blacks and Third World peoples in this country will continue to set the terms for class struggle in America.

In this context, why an emphasis on youth- Why should young people be willing to fight on the side of Third World peoples- Before dealing with this question about youth, however, there follows a brief sketch of the main class categories in the white mother country which we think are important, and [which] indicate our present estimation of their respective class interests (bearing in mind that the potential for various sections to understand and fight for the revolution will vary according to more than just their real class interests).

Most of the population is of the working class, by which we mean not simply industrial or production workers, nor those who are actually working, but the whole section of the population which doesn’t own productive property and so lives off of the sale of its labor power. This is not a metaphysical category either in terms of its interests, the role it plays, or even who is in it, which very often is difficult to determine.

As a whole, the long-range interests of the non-colonial sections of the working class lie with overthrowing imperialism, with supporting self-determination for the oppressed nations (including the black colony), with supporting and fighting for international socialism. However, virtually all of the white working class also has short-range privileges from imperialism, which are not false privileges but very real ones which give them an edge of vested interest and tie them to a certain extent to the imperialists, especially when the latter are in a relatively prosperous phase. When the imperialists are losing their empire, on the other hand, these short-range privileged interests are seen to be temporary (even though the privileges may be relatively greater over the faster-increasing emiseration of the oppressed peoples). The long-range interests of workers in siding with the oppressed peoples are seen more clearly in the light of imperialism’s impending defeat. Within the whole working class, the balance of anti-imperialist class interests with white mother country short-term privilege varies greatly.

First, the most oppressed sections of the mother country working class have interests most clearly and strongly anti-imperialist. Who are the most oppressed sections of the working class- Millions of whites who have as oppressive material conditions as the blacks, or almost so: especially poor southern white workers; the unemployed or semi-employed, or those employed at very low wages for long hours and bad conditions, who are non-unionized or have weak unions; and extending up to include much of unionized labor which has it a little better off but still is heavily oppressed and exploited. This category covers a wide range and includes the most oppressed sections not only of production and service workers but also some secretaries, clerks, etc. Much of this category gets some relative privileges (i.e. benefits) from imperialism, which constitute some material basis for being racist or pro-imperialist; but overall it is itself directly and heavily oppressed, so that in addition to its long-range class interest on the side of the people of the world, its immediate situation also constitutes a strong basis for sharpening the struggle against the state and fighting through to revolution.

Secondly, there is the upper strata of the working class. This is also an extremely broad category, including the upper strata of unionized skilled workers and also most of the “new working class” of proletarianized or semi-proletarianized “intellect workers.” There is no clearly marked dividing line between the previous section and this one; our conclusions in dealing with “questionable” strata will in any event have to come from more thorough analysis of particular situations. The long-range class interests of this strata, like the previous section of more oppressed workers, are for the revolution and against imperialism. However, it is characterized by a higher level of privilege relative to the oppressed colonies, including the blacks, and relative to more oppressed workers in the mother country; so that there is a strong material basis for racism and loyalty to the system. In a revolutionary situation, where the people’s forces were on the offensive and the ruling class was clearly losing, most of this upper strata of the working class will be winnable to the revolution, while at least some sections of it will probably identify their interests with imperialism till the end and oppose the revolution (which parts do which will have to do with more variables than just the particular level of privilege). The further development of the situation will clarify where this section will go, although it is clear that either way we do not put any emphasis on reaching older employed workers from this strata at this time. The exception is where they are important to the black liberation struggle, the Third World, or the youth movement in particular situations, such as with teachers, hospital technicians, etc., in which cases we must fight particularly hard to organize them around a revolutionary line of full support for black liberation and the international revolution against US imperialism. This is crucial because the privilege of this section of the working class has provided and will provide a strong material basis for national chauvinist and social democratic ideology within the movement, such as anti-internationalist concepts of “student power” and “workers control.” Another consideration in understanding the interests of this segment is that, because of the way it developed and how its skills and its privileges were “earned over time,” the differential between the position of youth and older workers is in many ways greater for this section than any other in the population. We should continue to see it as important to build the revolutionary youth movement among the youth of this strata.

Thirdly, there are “middle strata” who are not petit bourgeoisie, who may even technically be upper working class, but who are so privileged and tightly tied to imperialism through their job roles that they are agents of imperialism. This section includes management personnel, corporate lawyers, higher civil servants, and other government agents, army officers, etc. Because their job categories require and promote a close identification with the interests of the ruling class, these strata are enemies of the revolution.

Fourthly, and last among the categories we’re going to deal with, is the petit bourgeoisie. This class is different from the middle level described above in that it has the independent class interest which is opposed to both monopoly power and to socialism. The petit bourgeoisie consists of small capital—both business and farms—and self-employed tradesmen and professionals (many professionals work for monopoly capital, and are either the upper level of the working class or in the dent class interests-anti-monopoly capital, but for capitalism rather than socialism—gives it a political character of some opposition to “big government,” like its increased spending and taxes and its totalitarian extension of its control into every aspect of life, and to “big labor,” which is at this time itself part of the monopoly capitalist power structure. The direction which this opposition takes can be reactionary or reformist. At this time the reformist side of it is very much mitigated by the extent to which the independence of the petit bourgeoisie is being undermined. Increasingly, small businesses are becoming extensions of big ones, while professionals and self-employed tradesmen less and less sell their skills on their own terms and become regular employees of big firms. This tendency does not mean that the reformist aspect is not still present; it is, and there are various issues, like withdrawing from a losing imperialist war, where we could get support from them. On the question of imperialism as a system, however, their class interests are generally more for it than for overthrowing it, and it will be the deserters from their class who stay with us.

VIII. Why A Revolutionary Youth Movement-

In terms of the above analysis, most young people in the US are part of the working class. Although not yet employed, young people whose parents sell their labor power for wages, and more important who themselves expect to do the same in the future—or go into the army or be unemployed—are undeniably members of the working class. Most kids are well aware of what class they are in, even though they may not be very scientific about it. So our analysis assumes from the beginning that youth struggles are, by and large, working-class struggles. But why the focus now on the struggles of working-class youth rather than on the working class as a whole-

The potential for revolutionary consciousness does not always correspond to ultimate class interest, particularly when imperialism is relatively prosperous and the movement is in an early stage. At this stage, we see working-class youth as those most open to a revolutionary movement which sides with the struggles of Third World people; the following is an attempt to explain a strategic focus on youth for SDS.

In general, young people have less stake in a society (no family, fewer debts, etc.), are more open to new ideas (they have not been brainwashed for so long or so well), and are therefore more able and willing to move in a revolutionary direction. Specifically in America, young people have grown up experiencing the crises in imperialism. They have grown up along with a developing black liberation movement, with the liberation of Cuba, the fights for independence in Africa and the war in Vietnam. Older people grew up during the fight against fascism, during the Cold War, the smashing of the trade unions, McCarthy, and a period during which real wages consistently rose—since 1965 disposable real income has decreased slightly, particularly in urban areas where inflation and increased taxation have bitten heavily into wages. This crisis in imperialism affects all parts of the society. America has had to militarize to protect and expand its empire; hence the high draft calls and the creation of a standing army of three and a half million, an army which still has been unable to win in Vietnam. Further, the huge defense expenditures—required for the defense of the empire and at the same time a way of making increasing profits for the defense industries—have gone hand in hand with the urban crisis around welfare, the hospitals, the schools, housing, air and water pollution. The State cannot provide the services it has been forced to assume responsibility for, and needs to increase taxes and to pay its growing debts while it cuts services and uses the pigs to repress protest. The private sector of the economy can’t provide jobs, particularly unskilled jobs. The expansion of the defense and education industries by the State since World War II is in part an attempt to pick up the slack, though the inability to provide decent wages and working conditions for “public” jobs is more and more a problem.

As imperialism struggles to hold together this decaying social fabric, it inevitably resorts to brute force and authoritarian ideology. People, especially young people, more and more find themselves in the iron grip of authoritarian institutions. Reaction against the pigs or teachers in the schools, welfare pigs or the army, is generalizable and extends beyond the particular repressive institution to the society and the State as a whole. The legitimacy of the State is called into question for the first time in at least 30 years, and the anti-authoritarianism which characterizes the youth rebellion turns into rejection of the State, a refusal to be socialized into American society. Kids used to try to beat the system from inside the army or from inside the schools; now they desert from the army and burn down the schools.

The crisis in imperialism has brought about a breakdown in bourgeois social forms, culture and ideology. The family falls apart, kids leave home, women begin to break out of traditional “female” and “mother” roles. There develops a “generation gap” and a “youth problem.” Our heroes are no longer struggling businessmen, and we also begin to reject the ideal career of the professional and look to Mao, Chef, the Panthers, the Third World, for our models, for motion. We reject the elitist, technocratic bullshit that tells us only experts can rule, and look instead to leadership from the people’s war of the Vietnamese. Chuck Berry, Elvis, the Temptations brought us closer to the “people’s culture” of Black America. The racist response to the civil rights movement revealed the depth of racism in America, as well as the impossibility of real change through American institutions. And the war against Vietnam is not “the heroic war against the Nazis”; it’s the big lie, with napalm burning through everything we had heard this country stood for. Kids begin to ask questions: Where is the Free World- And who do the pigs protect at home-

The breakdown in bourgeois culture and concomitant anti-authoritarianism is fed by the crisis in imperialism, but also in turn feeds that crisis, exacerbates it so that people no longer merely want the plastic ’50s restored, but glimpse an alternative (like inside the Columbia buildings) and begin to fight for it. We don’t want teachers to be more kindly cops; we want to smash cops, and build a new life.

The contradictions of decaying imperialism fall hardest on youth in four distinct areas—the schools, jobs, the draft and the army, and the pigs and the courts. (A) In jail-like schools, kids are fed a mish-mash of racist, male chauvinist, anti-working class, anti-communist lies while being channeled into job and career paths set up according to the priorities of monopoly capital. At the same time, the State is becoming increasingly incapable of providing enough money to keep the schools going at all. (B) Youth unemployment is three times average unemployment. As more jobs are threatened by automation or the collapse of specific industries, unions act to secure jobs for those already employed. New people in the labor market can’t find jobs, job stability is undermined (also because of increasing speed-up and more intolerable safety conditions) and people are less and less going to work in the same shop for 40 years. And, of course, when they do find jobs, young people get the worst ones and have the least seniority. (C) There are now two and a half million soldiers under thirty who are forced to police the world, kill and be killed in wars of imperialist domination. And (D) as a “youth problem” develops out of all this, the pigs and courts enforce curfews, set up pot busts, keep people off the streets, and repress any youth motion whatsoever.

In all of this, it is not that life in America is toughest for youth or that they are the most oppressed. Rather, it is that young people are hurt directly—and severely—by imperialism. And, in being less tightly tied to the system, they are more “pushed” to join the black liberation struggle against US imperialism. Among young people there is less of a material base for racism—they have no seniority, have not spent 20 years securing a skilled job (the white monopoly of which is increasingly challenged by the black liberation movement), and aren’t just about to pay off a 25-year mortgage on a house which is valuable because it’s located in a white neighborhood.

While these contradictions of imperialism fall hard on all youth, they fall hardest on the youth of the most oppressed (least privileged) sections of the working class. Clearly these youth have the greatest material base for struggle. They are the ones who most often get drafted, who get the worst jobs if they get any, who are most abused by the various institutions of social control, from the army to decaying schools, to the pigs and the courts. And their day-to-day existence indicates a potential for militancy and toughness. They are the people whom we can reach who at this stage are most ready to engage in militant revolutionary struggle.

The point of the revolutionary youth movement strategy is to move from a predominant student elite base to more oppressed (less privileged) working-class youth as a way of deepening and expanding the revolutionary youth movement—not of giving up what we have gained, not giving up our old car for a new Dodge. This is part of a strategy to reach the entire working class to engage in struggle against imperialism; moving from more privileged sections of white working-class youth to more oppressed sections to the entire working class as a whole, including importantly what has classically been called the industrial proletariat. But this should not be taken to mean that there is a magic moment, after we reach a certain percentage of the working class, when all of a sudden we become a working-class movement. We are already that if we put forward internationalist proletarian politics. We also don’t have to wait to become a revolutionary force. We must be a self-conscious revolutionary force from the beginning, not be a movement which takes issues to some mystical group—”THE PEOPLE”—who will make the revolution. We must be a revolutionary movement of people understanding the necessity to reach more people, all working people, as we make the revolution.

The above arguments make it clear that it is both important and possible to reach young people wherever they are—not only in the shops, but also in the schools, in the army and in the streets—so as to recruit them to fight on the side of the oppressed peoples of the world. Young people will be part of the International Liberation Army. The necessity to build this International Liberation Army in America leads to certain priorities in practice for the revolutionary youth movement which we should begin to apply this summer. …

IX. Imperialism Is The Issue

The Communists are distinguished from the other working-class parties by this only: 1. In the national struggles of the proletariat of different countries, they point out and bring to the front the common interests of the entire proletariat, independently of all nationality. 2. In the various stages of development which the struggle of the working-class against the bourgeoisie has to pass through, they always and everywhere represent the interests of the movement as a whole.”

—Communist Manifesto

How do we reach youth; what kinds of struggles do we build; how do we make a revolution- What we have tried to lay out so far is the political content of the consciousness which we want to extend and develop as a mass consciousness: the necessity to build our power as part of the whole international revolution to smash the state power of the imperialists and build socialism. Besides consciousness of this task, we must involve masses of people in accomplishing it. Yet we are faced with a situation in which almost all of the people whose interests are served by these goals, and who should be, or even are, sympathetic to revolution, neither understand the specific tasks involved in making a revolution nor participate in accomplishing them. On the whole, people don’t join revolutions just because revolutionaries tell them to. The oppression of the system affects people in particular ways, and the development of political consciousness and participation begins with particular problems, which turn into issues and struggles. We must transform people’s everyday problems, and the issues and struggles growing out of them, into revolutionary consciousness, active and conscious opposition to racism and imperialism.

This is directly counterposed to assuming that struggles around immediate issues will lead naturally over time to struggle against imperialism. It has been argued that since people’s oppression is due to imperialism and racism, then any struggle against immediate oppression is “objectively anti-imperialist,” and the development of the fight against imperialism is a succession of fights for reforms. This error is classical economism.

A variant of this argument admits that this position is often wrong, but suggests that since imperialism is collapsing at this time, fights for reforms become “objectively anti-imperialist.” At this stage of imperialism there obviously will be more and more struggles for the improvement of material conditions, but that is no guarantee of increasing internationalist proletarian consciousness.

On the one hand, if we, as revolutionaries, are capable of understanding the necessity to smash imperialism and build socialism, then the masses of people who we want to fight along with us are capable of that understanding. On the other hand, people are brainwashed and at present don’t understand it; if revolution is not raised at every opportunity, then how can we expect people to see it in their interests, or to undertake the burdens of revolution- We need to make it clear from the very beginning that we are about revolution. But if we are so careful to avoid the dangers of reformism, how do we relate to particular reform struggles- We have to develop some sense of how to relate each particular issue to the revolution.

In every case, our aim is to raise anti-imperialist and anti-racist consciousness and tie the struggles of working-class youth (and all working people) to the struggles of Third World people, rather than merely joining fights to improve material conditions, even though these fights are certainly justified. This is not to say that we don’t take immediate fights seriously, or fight hard in them, but that we are always up front with our politics, knowing that people in the course of struggle are open to a class line, ready to move beyond narrow self-interest.

It is in this sense that we point out that the particular issue is not the issue, is important insofar as it points to imperialism as an enemy that has to be destroyed. Imperialism is always the issue. Obviously, the issue cannot be a good illustration, or a powerful symbol, if it is not real to people, if it doesn’t relate to the concrete oppression that imperialism causes. People have to be (and are being) hurt in some material way to understand the evils of imperialism, but what we must stress is the systematic nature of oppression and the way in which a single manifestation of imperialism makes clear its fundamental nature. At Columbia it was not the gym, in particular, which was important in the struggle, but the way in which the gym represented, to the people of Harlem and Columbia, Columbia’s imperialist invasion of the black colony. Or at Berkeley, though people no doubt needed a park (as much, however, as many other things-), what made the struggle so important was that people, at all levels of militancy, consciously saw themselves attacking private property and the power of the State. And the Richmond Oil Strike was exciting because the militant fight for improvement of material conditions was part and parcel of an attack on international monopoly capital. The numbers and militancy of people mobilized for these struggles has consistently surprised the left, and pointed to the potential power of a class-conscious mass movement.

The masses will fight for socialism when they understand that reform fights, fights for improvement of material conditions, cannot be won under imperialism. With this understanding, revolutionaries should never put forth a line which fosters the illusion that imperialism will grant significant reforms. We must engage in struggles forthrightly as revolutionaries, so that it will be clear to anyone we help to win gains that the revolution rather than imperialism is responsible for them. This is one of the strengths of the Black Panther Party Breakfast for Children Program. It is “socialism in practice” by revolutionaries with the “practice” of armed self-defense and a “line” which stresses the necessity of overthrowing imperialism and seizing state power. Probably the American Friends Service Committee serves more children breakfast, but it is the symbolic value of the program in demonstrating what socialism will do for people which makes the Black Panther Program worthwhile.

What does it mean to organize around racism and imperialism in specific struggles- In the high schools (and colleges) at this time, it means putting forth a mass line to close down the schools, rather than to reform them, so that they can serve the people. The reason for this line is not that under capitalism the schools cannot serve the people, and therefore it is silly or illusory to demand that. Rather, it is that kids are ready for the full scope of militant struggle, and already demonstrate a consciousness of imperialism, such that struggles for a people-serving school would not raise the level of their struggle to its highest possible point. Thus, to tell a kid in New York that imperialism tracks him and thereby oppresses him is often small potatoes compared to his consciousness that imperialism oppresses him by jailing him, pigs and all, and the only thing to do is break out and tear up the jail. And even where high school kids are not yet engaged in such sharp struggle, it is crucial not to build consciousness only around specific issues such as tracking or ROTC or racist teachers, but to use these issues to build toward the general consciousness that the schools should be shut down. It may be important to present a conception of what schools should or could be like (this would include the abolition of the distinction between mental and physical work), but not offer this total conception as really possible to fight for in any way but through revolution.

A mass line to close down the schools or colleges does not contradict demands for open admissions to college or any other good reform demand. Agitational demands for impossible, but reasonable, reforms are a good way to make a revolutionary point. The demand for open admissions by asserting the alternative to the present (school) system exposes its fundamental nature—that it is racist, class-based, and closed—pointing to the only possible solution to the present situation: “Shut it down!” The impossibility of real open admissions—all black and brown people admitted, no flunk-out, full scholarship, under present conditions—is the best reason (that the schools show no possibility for real reform) to shut the schools down. We should not throw away the pieces of victories we gain from these struggles, for any kind of more open admissions means that the school is closer to closing down (it costs the schools more, there are more militant blacks and browns making more and more fundamental demands on the schools, and so on). Thus our line in the schools, in terms of pushing any good reforms, should be, Open them up and shut them down!”

The spread of black caucuses in the shops and other workplaces throughout the country is an extension of the black liberation struggle. These groups have raised and will continue to raise anti-racist issues to white workers in a sharper fashion than any whites ever have or could raise them. Blacks leading struggles against racism made the issue unavoidable, as the black student movement leadership did for white students. At the same time these black groups have led fights which traditional trade-union leaders have consistently refused to lead—fights against speed-up and for safety (issues which have become considerably more serious in the last few years), forcing white workers, particularly the more oppressed, to choose in another way between allegiance to the white mother country and black leadership. As white mother country radicals we should try to be in shops, hospitals, and companies where there are black caucuses, perhaps organizing solidarity groups, but at any rate pushing the importance of the black liberation struggle to whites, handing out Free Huey literature, bringing guys out to Panther rallies, and so on. Just one white guy could play a crucial role in countering UAW counter-insurgency.

We also need to relate to workplaces where there is no black motion but where there are still many young white workers. In the shops the crisis in imperialism has come down around speed-up, safety, and wage squeeze—due to higher taxes and increased inflation, with the possibility of wage-price controls being instituted.

We must relate this exploitation back to imperialism. The best way to do this is probably not caucuses in the shops, but to take guys to citywide demonstrations, Newsreels, even the latest administration building, to make the Movement concrete to them and involve them in it. Further, we can effect consciousness and pick up people through agitational work at plants, train stops, etc., selling Movements, handing out leaflets about the war, the Panthers, the companies’ holdings overseas or relations to defense industry, etc.

After the Richmond strike, people leafleted about demonstrations in support of the Curaçao Oil workers, Free Huey May Day, and People’s Park.

SDS has not dealt in any adequate way with the women question; the resolution passed at Ann Arbor did not lead to much practice, nor has the need to fight male supremacy been given any programmatic direction within the RYM. As a result, we have a very limited understanding of the tie-up between imperialism and the women question, although we know that since World War II the differential between men’s and women’s wages has increased, and guess that the breakdown of the family is crucial to the woman question. How do we organize women against racism and imperialism without submerging the principled revolutionary question of women’s liberation- We have no real answer, but we recognize the real reactionary danger of women’s groups that are not self-consciously revolutionary and anti-imperialist.

To become more relevant to the growing women’s movement, SDS women should begin to see as a primary responsibility the self-conscious organizing of women. We will not be able to organize women unless we speak directly to their own oppression. This will become more and more critical as we work with more oppressed women. Women who are working and women who have families face male supremacy continuously in their day-to-day lives; that will have to be the starting point in their politicization. Women will never be able to undertake a full revolutionary role unless they break out of their woman’s role. So a crucial task for revolutionaries is the creation of forms of organization in which women will be able to take on new and independent roles. Women’s self-defense groups will be a step toward these organizational forms, as an effort to overcome women’s isolation and build revolutionary self-reliance.

The cultural revolt of women against their “role” in imperialism (which is just beginning to happen in a mass way) should have the same sort of revolutionary potential that the RYM claimed for “youth culture.” The role of the “wife-mother” is reactionary in most modern societies, and the disintegration of that role under imperialism should make women more sympathetic to revolution.

In all of our work we should try to formulate demands that not only reach out to more oppressed women, but ones which tie us to other ongoing struggles, in the way that a daycare center at U of C [University of Chicago] enabled us to tie the women’s liberation struggle to the Black Liberation struggle.

There must be a strong revolutionary women’s movement, for without one it will be impossible for women’s liberation to be an important part of the revolution. Revolutionaries must be made to understand the full scope of women’s oppression, and the necessity to smash male supremacy.

X. Neighborhood-Based Citywide Youth Movement

One way to make clear the nature of the system and our tasks working off of separate struggles is to tie them together with each other: to show that we’re one “multi-issue” movement, not an alliance of high school and college students, or students and GIs, or youth and workers, or students and the black community. The way to do this is to build organic regional or sub-regional and citywide movements, by regularly bringing people in one institution or area to fights going on on other fronts.

This works on two levels. Within a neighborhood, by bringing kids to different fights and relating these fights to each other—high school stuff, colleges, housing, welfare, shops—we begin to build one neighborhood-based multi-issue movement off of them. Besides actions and demonstrations, we also pull different people together in day-to-day film showings, rallies, for speakers and study groups, etc. On a second level, we combine neighborhood “bases” into a citywide or region-wide movement by doing the same kind of thing; concentrating our forces at whatever important struggles are going on and building more ongoing interrelationships off of that.

The importance of specifically neighborhood-based organizing is illustrated by our greatest failing in RYM practice so far—high school organizing. In most cities we don’t know the kids who have been tearing up and burning down the schools. Our approach has been elitist, relating to often baseless citywide groups by bringing them our line, or picking up kids with a false understanding of “politics” rather than those whose practice demonstrates their concrete anti-imperialist consciousness that schools are prisons. We’ve been unwilling to work continuously with high school kids as we did in building up college chapters. We will only reach the high school kids who are in motion by being in the schoolyards, hangouts and on the streets on an everyday basis. From a neighborhood base, high school kids could be effectively tied in to struggles around other institutions and issues, and to the anti-imperialist movement as a whole.

We will try to involve neighborhood kids who aren’t in high schools too; take them to anti-war or anti-racism fights, stuff in the schools, etc.; and at the same time reach out more broadly through newspapers, films, storefronts. Activists and cadres who are recruited in this work will help expand and deepen the Movement in new neighborhoods and high schools. Mostly we will still be tied in to the college-based movement in the same area, be influencing its direction away from campus-oriented provincialism, be recruiting high school kids into it where it is real enough and be recruiting organizers out of it. In its most developed form, this neighborhood-based movement would be a kind of sub-region. In places where the Movement wasn’t so strong, this would be an important form for being close to kids in a day-to-day way and yet be relating heavily to a lot of issues and political fronts which the same kids are involved with.

The second level is combining these neighborhoods into citywide and regional movements. This would mean doing the same thing—bringing people to other fights going on—only on a larger scale, relating to various blow-ups and regional mobilizations. An example is how a lot of people from different places went to San Francisco State, the Richmond Oil Strike, and now Berkeley. The existence of this kind of cross-motion makes ongoing organizing in other places go faster and stronger, first by creating a pervasive politicization, and second by relating everything to the most militant and advanced struggles going on so that they influence and set the pace for a lot more people. Further, cities are a basic unit of organization of the whole society in a way that neighborhoods aren’t. For example, one front where we should be doing stuff is the courts; they are mostly organized citywide, not by smaller areas. The same for the city government itself. Schools where kids go are in different neighborhoods from where they live, especially colleges; the same for hospitals people go to, and where they work. As a practical question of staying with people we pick up, the need for a citywide or area-wide kind of orientation is already felt in our movement.

Another failure of this year was making clear what the RYM meant for chapter members and students who weren’t organizers about to leave their campus for a community college, high school, GI organizing, shops or neighborhoods. One thing it means for them is relating heavily to off-campus activities and struggles, as part of the citywide motion. Not leaving the campus movement like people did for ERAP [Education Research Action Project] stuff; rather, people still organized on the campus in off-campus struggles, the way they have in the past for national actions. Like the national actions, the citywide ones will build the on-campus movement, not compete with it.

Because the Movement will be defining itself in relation to many issues and groups, not just schools (and the war and racism as they hit at the schools), it will create a political context that non-students can relate to better, and be more useful to organizing among high school students, neighborhood kids, the mass of people. In the process, it will change the consciousness of the students too; if the issues are right and the Movement fights them, people will develop a commitment to the struggle as a whole, and an understanding of the need to be revolutionaries rather than a “student movement.” Building a revolutionary youth movement will depend on organizing in a lot of places where we haven’t been, and just tying the student movement to other issues and struggles isn’t a substitute for that. But given our limited resources we must also lead the on-campus motion into a RYM direction, and we can make great gains toward citywide youth movements by doing it.

Three principles underlie this multi-issue, “cross-institutional” movement, on the neighborhood and citywide levels, as to why it creates greater revolutionary consciousness and active participation in the revolution:

(1) Mixing different issues, struggles and groups demonstrates our analysis to people in a material way. We claim there is one system and so all these different problems have the same solution, revolution. If they are the same struggle in the end, we should make that clear from the beginning. On this basis we must aggressively smash the notion that there can be outside agitators on a question pertaining to the imperialists.

(2) “Relating to Motion”: the struggle activity, the action, of the Movement demonstrates our existence and strength to people in a material way. Seeing it happen, people give it more weight in their thinking. For the participants, involvement in struggle is the best education about the Movement, the enemy and the class struggle. In a neighborhood or whole city the existence of some struggle is a catalyst for other struggles—it pushes people to see the Movement as more important and urgent, and as an example and precedent makes it easier for them to follow. If the participants in a struggle are based in different institutions or parts of the city, these effects are multiplied. Varied participation helps the Movement be seen as political (wholly subversive) rather than as separate grievance fights. As people in one section of the Movement fight beside and identify closer with other sections, the mutual catalytic effect of their struggles will be greater.

(3) We must build a Movement oriented toward power. Revolution is a power struggle, and we must develop that understanding among people from the beginning. Pooling our resources area-wide and citywide really does increase our power in particular fights, as-well as push a mutual-aid-in-struggle consciousness.

XI. The RYM And The Pigs

A major focus in our neighborhood and citywide work is the pigs, because they tie together the various struggles around the State as the enemy, and thus point to the need for a Movement oriented toward power to defeat it.

The pigs are the capitalist state, and as such define the limits of all political struggles; to the extent that a revolutionary struggle shows signs of success, they come in and mark the point it can’t go beyond. In the early stages of struggle, the ruling class lets parents come down on high school kids, or jocks attack college chapters. When the struggle escalates the pigs come in; at Columbia, the left was afraid its struggle would be co-opted to anti-police brutality, cops off campus, and said pigs weren’t the issue. But pigs really are the issue and people will understand this, one way or another. They can have a liberal understanding that pigs are sweaty working-class barbarians who over-react and commit “police brutality” and so shouldn’t be on campus. Or they can understand pigs as the repressive imperialist State doing its job. Our job is not to avoid the issue of the pigs as “diverting” from anti-imperialist struggle, but to emphasize that they are our real enemy if we fight that struggle to win.

Even when there is no organized political struggle, the pigs come down on people in everyday life in enforcing capitalist property relations, bourgeois laws and bourgeois morality; they guard stores and factories and the rich and enforce credit and rent against the poor. The overwhelming majority of arrests in America are for crimes against property. The pigs will be coming down on the kids we’re working with in the schools, on the streets, around dope; we should focus on them, point them out all the time, like the Panthers do. We should relate the daily oppression by the pig to their role in political repression, and develop a class understanding of political power and armed force among the kids we’re with.

As we develop a base these two aspects of the pig role increasingly come together. In the schools, pig is part of daily oppression—keeping order in halls and lunch rooms, controlling smoking—while at the same time pigs prevent kids from handing out leaflets, and bust “outside agitators.” The presence of youth, or youth with long hair, becomes defined as organized political struggle and the pigs react to it as such. More and more everyday activity is politically threatening, so pigs are suddenly more in evidence; this in turn generates political organization and opposition, and so on. Our task will be to catalyze this development, pushing out the conflict with the pig so as to define every struggle—schools (pigs out, pig institutes out), welfare (invading pig-protected office), the streets (curfew and turf fights)—as a struggle against the needs of capitalism and the force of the State.

Pigs don’t represent State power as an abstract principle; they are a power that we will have to overcome in the course of struggle or become irrelevant, revisionist, or dead. We must prepare concretely to meet their power because our job is to defeat the pigs and the army, and organize on that basis. Our beginnings should stress self-defense—building defense groups around karate classes, learning how to move on the street and around the neighborhood, medical training, popularizing and moving toward (according to necessity) armed self-defense, all the time honoring and putting forth the principle that “political power comes out of the barrel of a gun.” These self-defense groups would initiate pig surveillance patrols, visits to the pig station and courts when someone is busted, etc.

Obviously the issues around the pig will not come down by neighborhood alone; it will take at least citywide groups able to coordinate activities against a unified enemy—in the early stages, for legal and bail resources and turning people out for demonstrations, adding the power of the citywide movement to what may be initially only a tenuous base in a neighborhood. Struggles in one part of the city will not only provide lessons for but [will] materially aid similar motion in the rest of it.

Thus the pigs are ultimately the glue—the necessity—that holds the neighborhood-based and citywide movement together; all of our concrete needs lead to pushing the pigs to the fore as a political focus:

(1) making institutionally oriented reform struggles deal with State power, by pushing our struggle till either winning or getting pigged;

(2) using the citywide inter-relation of fights to raise the level of struggle and further large-scale anti-pig movement-power consciousness;

(3) developing spontaneous anti-pig consciousness in our neighborhoods to an understanding of imperialism, class struggle and the State;

(4) and using the citywide movement as a platform for reinforcing and extending this politicization work, like by talking about getting together a citywide neighborhood-based mutual aid anti-pig self-defense network.

All of this can be done through citywide agitation and propaganda and picking certain issues—to have as the central regional focus for the whole Movement.

XII. Repression And Revolution

As institutional fights and anti-pig self-defense off of them intensify, so will the ruling class’s repression. Their escalation of repression will inevitably continue according to how threatening the Movement is to their power. Our task is not to avoid or end repression; that can always be done by pulling back, so we’re not dangerous enough to require crushing. Sometimes it is correct to do that as a tactical retreat, to survive to fight again.

To defeat repression, however, is not to stop it but to go on building the Movement to be more dangerous to them; in which case, defeated at one level, repression will escalate even more. To succeed in defending the Movement, and not just ourselves at its expense, we will have to successively meet and overcome these greater and greater levels of repression.

To be winning will thus necessarily, as imperialism’s lesser efforts fail, bring about a phase of all-out military repression. To survive and grow in the face of that will require more than a larger base of supporters; it will require the invincible strength of a mass base at a high level of active participation and consciousness, and can only come from mobilizing the self-conscious creativity, will and determination of the people.

Each new escalation of the struggle in response to new levels of repression, each protracted struggle around self-defense which becomes a material fighting force, is part of the international strategy of solidarity with Vietnam and the blacks, through opening up other fronts. They are anti-war, anti-imperialist and pro-black liberation. If they involve fighting the enemy, then these struggles are part of the revolution.

Therefore, clearly the organization and active, conscious, participating mass base needed to survive repression are also the same needed for winning the revolution. The Revolutionary Youth Movement speaks to the need for this kind of active mass-based Movement by tying citywide motion back to community youth bases, because this brings us close enough to kids in their day-to-day lives to organize their “maximum active participation” around enough different kinds of fights to push the “highest level of consciousness” about imperialism, the black vanguard, the State and the need for armed struggle.

III. The Need For A Revolutionary Party

The RYM must also lead to the effective organization needed to survive and to create another battlefield of the revolution. A revolution is a war; when the Movement in this country can defend itself militarily against total repression it will be part of the revolutionary war.

This will require a cadre organization, effective secrecy, self-reliance among the cadres, and an integrated relationship with the active mass-based Movement. To win a war with an enemy as highly organized and centralized as the imperialists will require a (clandestine) organization of revolutionaries, having also a unified “general staff”; that is, combined at some point with discipline under one centralized leadership. Because war is political, political tasks—the international communist revolution—must guide it. Therefore the centralized organization of revolutionaries must be a political organization as well as military, what is generally called a “Marxist-Leninist” party.

How will we accomplish the building of this kind of organization- It is clear that we couldn’t somehow form such a party at this time, because the conditions for it do not exist in this country outside the Black nation. What are these conditions-

One is that to have a unified centralized organization it is necessary to have a common revolutionary theory which explains, at least generally, the nature of our revolutionary tasks and how to accomplish them. It must be a set of ideas which have been tested and developed in the practice of resolving the important contradictions in our work.

A second condition is the existence of revolutionary leadership tested in practice. To have a centralized party under illegal and repressive conditions requires a centralized leadership, specific individuals with the understanding and the ability to unify and guide the Movement in the face of new problems and be right most of the time.

Thirdly, and most important, there must be the same revolutionary mass base mentioned earlier, or (better) revolutionary mass movement. It is clear that without this there can’t be the practical experience to know whether or not a theory, or a leader, is any good at all. Without practical revolutionary activity on a mass scale the party could not test and develop new ideas and draw conclusions with enough surety behind them to consistently base its survival on them. Especially, no revolutionary party could possibly survive Without relying on the active support and participation of masses of people.

These conditions for the development of a revolutionary party in this country are the main “conditions” for winning. There are two kinds of tasks for us.

One is the organization of revolutionary collectives within the Movement. Our theory must come from practice, but it can’t be developed in isolation. Only a collective pooling of our experiences can develop a thorough understanding of the complex conditions in this country. In the same way, only our collective efforts toward a common plan can adequately test the ideas we develop. The development of revolutionary Marxist-Leninist-Maoist collective formations which undertake this concrete evaluation and application of the lessons of our work is not just the task of specialists or leaders, but the responsibility of every revolutionary. Just as a collective is necessary to sum up experiences and apply them locally, equally the collective interrelationship of groups all over the country is necessary to get an accurate view of the whole movement and to apply that in the whole country. Over time, those collectives which prove themselves in practice to have the correct understanding (by the results they get) will contribute toward the creation of a unified revolutionary party.

The most important task for us toward making the revolution, and the work our collectives should engage in, is the creation of a mass revolutionary movement, without which a clandestine revolutionary party will be impossible. A revolutionary mass movement is different from the traditional revisionist mass base of “sympathizers.” Rather it is akin to the Red Guard in China, based on the full participation and involvement of masses of people in the practice of making revolution; a movement with a full willingness to participate in the violent and illegal struggle. It is a movement diametrically opposed to the elitist idea that only leaders are smart enough or interested enough to accept full revolutionary conclusions. It is a movement built on the basis of faith in the masses of people.

The task of collectives is to create this kind of movement. (The party is not a substitute for it. and in fact is totally dependent on it.) This will be done at this stage principally among youth, through implementing the Revolutionary Youth Movement strategy discussed in this paper. It is practice at this, and not political “teachings” in the abstract, which will determine the relevance of the political collectives which are formed.

The strategy of the RYM for developing an active mass base, tying the citywide fights to community and citywide anti-pig movement, and for building a party eventually out of this motion, fits with the world strategy for winning the revolution, builds a movement oriented toward power, and will become one division of the International Liberation Army, while its battlefields are added to the many Vietnams which will dismember and dispose of US imperialism. Long Live the Victory of People’s War!

The encirclement of US rivals is apace

“Washington policy now encompasses a series of ‘democratic’ or soft coup projects which would strategically cut China off from access to the vital oil and gas reserves of the Caspian including Kazakhstan. The earlier Asian Great Silk Road trade routes went through Tashkent in Uzbekistan and Almaty in Kazakhstan for geographically obvious reasons, in a region surrounded by major mountain ranges. Geopolitical control of Uzbekistan, Kyrgyzstan, Kazakhstan would enable control of any potential pipeline routes between China and Central Asia just as the encirclement of Russia controls pipeline and other ties between it and western Europe, China, India and the Mideast.” –William Engdahl

In this light does it become more clear why American intelligence interests support FREE TIBET efforts, and Greg Mortenson’s Central Asian Institute “western education” encirclement of China’s southern border!

Bruce Gagnon of Organizing Notes has assembled some notes on the growing conflict in South Ossetia, Georgia, and the implications it poses for a broader military engagement.

I’ll reprint Bruce’s article here:

WHAT DO WE KNOW ABOUT GEORGIA-RUSSIA CONFLICT?

I must admit that I am not an expert on the Georgia-Russia conflict that is now underway. But I have been following issues there for some time and have learned to see some linkages between what is going on in places like Poland, Czech Republic, Iran, Iraq, Afghanistan, China, and the Georgia-Russia conflict.

So here are some random, and not so random, observations and quotes that I think might give us all something to ponder.

* It’s all about oil and natural gas. Russia has the world’s largest supply of natural gas and Iran has the world’s second largest supply. There is much oil and natural gas up in the Caspian Sea region. Which ever country controls this part of the world will have a jump start in controlling the keys to the world’s economic engine for the foreseeable future.

* The expanding economy of China has tremendous need for energy. China now imports much of its oil via sea (thru the Taiwan Straits) and the U.S. has in recent years doubled its naval presence in this region pursuing the ability to “choke off” China’s ability to import oil. China is looking for alternative, land routes, to transmit oil thus pipelines through Central Asia become crucial. U.S. permanent bases in Afghanistan and attempts to put military bases in other Central Asian countries is in large part an attempt to create the ability to control these pipeline routes. F. William Engdahl, author of A Century of War: Anglo-American Oil Politics and the New World Order, maintains that, “Washington is out to deny China east land access to either Russia, the Middle East or to the oil and gas fields of the Caspian Sea.”

Engdahl goes on to say,

“A close look at the map of Eurasia begins to suggest what is so vital for China and therefore for Washington’s future domination of Eurasia. The goal is not only strategic encirclement of Russia through a series of NATO bases ranging from Camp Bond Steel in Kosovo to Poland, to Georgia, possibly Ukraine and White Russia, which would enable NATO to control energy ties between Russia and the European Union.”

“Washington policy now encompasses a series of ‘democratic’ or soft coup projects which would strategically cut China off from access to the vital oil and gas reserves of the Caspian including Kazakhstan. The earlier Asian Great Silk Road trade routes went through Tashkent in Uzbekistan and Almaty in Kazakhstan for geographically obvious reasons, in a region surrounded by major mountain ranges. Geopolitical control of Uzbekistan, Kyrgyzstan, Kazakhstan would enable control of any potential pipeline routes between China and Central Asia just as the encirclement of Russia controls pipeline and other ties between it and western Europe, China, India and the Mideast.”

* Some years ago I read the book called The Grand Chessboard by Zbigniew Brzezinski which I recently wrote about in relation to his being a chief foreign policy advisor to Barack Obama. Brzezinski has been critical of the Bush administration for invading Iraq essentially saying that it was the wrong war. Brzezinski has long maintained that Russia and China were the targets that had to be militarily contained if the U.S. hoped to continue its role as chief superpower of the world. He says, “Eurasia is the world’s axial super continent. A power that dominated Eurasia would exercise decisive influence over two of the world’s three most economically productive regions, Western Europe and East Asia. A glance at the map also suggests that a country dominant in Eurasia would almost automatically control the Middle East and Africa. With Eurasia now serving as the decisive geopolitical chessboard, it no longer suffices to fashion one policy for Europe and another for Asia…..Eurasia accounts for 75% of the world’s population, 60% of its GNP, and 75% of its energy resources. Collectively, Eurasia’s potential power overshadows even America’s.”

* In 2005 the Baku-Tbilisi-Ceyhan (BTC) oil pipeline opened. It cost $3.6 billion and was funded by British Petroleum (BP) in a consortium including Unocal of the U.S. and Turkish Petroleum, and others. With the fall of the Soviet Union a scramble ensued for political and economic control of this part of the world. Georgia is on the pipeline route. Russia was opposed to this pipeline route. Brzezinski was a consultant to BP during the Bill Clinton era and urged Washington to back the project whose route would circumvent Russia.

Brzezinski also serves on the board of the US-Azerbaijan Chamber of Commerce that includes people like Tim Cejka (President of ExxonMobil Exploration); Henry Kissinger; James Baker III (who in 2003 went to Georgia to tell them President Shevardnadze that Washington wanted him to step down so U.S.-trained Mikhail Shaakashvili could replace him as president); Brent Scowcroft (former Bush I national security adviser); and Dick Cheney (who served on the board before becoming Bush II’s V-P).

The U.S. has long been involved in supporting “freedom movements” throughout this region that have been attempting to replace Russian influence with U.S. corporate control. The CIA, National Endowment for Democracy (board members include former neo-conservative congressman Vin Weber and General Wesley Clark), and Freedom House (includes Zbigniew Brzezinski, former CIA director James Woolsey, and Obama foreign policy adviser Anthony Lake) have been key funders and supporters of placing politicians in power throughout Central Asia that would play ball with “our side”.

* Now all of this hardball politics is to be expected. The U.S., Russia, and China all want control of this part of the world. OK, nothing new there. But the current Georgia-Russia conflict indicates that things are moving to a new dangerous stage of development. Very recently the U.S. and Georgia held military maneuvers in the now disputed territories. Russia countered with military maneuvers of its own. Russia is feeling threatened by expanding U.S. bases in Romania, Bulgaria, Poland and the Czech Republic. Added to that are NATO attempts to put bases in Latvia, Lithuania, and Estonia and possibly even Georgia – all along or very near Russia’s border.

* None of this is about the good guys verses the bad guys. It is power bloc politics and when the shooting starts it is civilians who die and their communities get destroyed. Big money is at stake and big money does not mind killing innocent people who stand in the way of “progress”. For the peace movement we must first understand some of the history, and also understand the “chess” game now underway. We must not have illusions that this is about “democracy” and must denounce the military and corporate agenda of the players involved. For us in the U.S. we must also remove our blinders and see that both parties (Republican and Democrat) share a bi-partisan history and agenda of advancing corporate interests in this part of the world. Obama’s advisers, just like McCain’s (one of his top advisers was recently a lobbyist for the current government in Georgia) are thick in this stew.

* In the end the peace movement must recognize that this current fighting could trigger protracted war and the only question becomes which weapons get used? Does the U.S. decide it must “come to the aid of it’s ally Georgia”? Is an attack on Iran somehow connected to this widening war for oil? Are nuclear weapons on the table? None of us has all the answers but it is imperative that we begin asking these hard questions and learn as quickly as possible as much as we can about the region.

* Lastly, need I remind anyone, that any protracted warfare in this region will be directed by space satellite technology. Space control and domination gives the U.S. the leg-up in any superpower struggle for control of oil and natural gas.

Britain and US have plans to invade Zimbabwe

Yes, Britain and the US have plans to invade and occupy Zimbabwe using primarily troops of the African Union to hide behind. Then of course, the United Nations also would step in to camouflage the neo-colonial military operation. MoD contingency plans for military action in Zimbabwe

Mugabe is a dictator, but this is not at all what bothers the US and Great Britain about him. What bothers the Western European governments allied around the US and Britain is that Mugabe is not their dictator. They do not control him therefore he must go.

The ‘elections’ that took place in Zimbabwe were the grand plan to move the imperialist countries back into controlling the Zimbabwe government, but Mugabe did not just fall down and surrender beneath the superior fire power of the outsiders. Now Britain and the US are really angry about this!

Once again we see how the US and Britain claim to be the ultimate guardians of all humanitarianism, even as they destroy entire regions of the world with their military industrial complexes. We in the British and American antiwar communities should not allow ourselves to be deceived by the con men that run our governments. There is absolutely nothing at all humanitarian in their plans for continual and perpetual global warfare. Their plans for Zimbabwe are just more of their around-the-clock, global inhumanitarian interventionism and we should not be fooled into thinking otherwise.

Dry Run at the State Convention

Police riot shieldsCOLORADO SPRINGS- Interviewers kept asking me ahead of time if the local Colorado Democratic State Convention was going to be a dry run for groups planning something big at the national convention in August. Their curiosity might have been piqued by the mention of PROTEST COLORADO on Michael Moore’s list of “more fun with dry runs” leading to the DNC. I told them I was aware of no such plans, but it became clear to me today that the news reporters had been on to something. There WAS a dry run in the works, and it was being carried out by law enforcement.

I was arrested at 7:05AM Saturday, through no planning of my own. There was confusion over where the First Amendment applied and where it did not. There was a “FREE SPEECH ZONE” which shared a police-tape demarcated area with a “BOOSTER ZONE” for those whose speech was regulated by the Democratic Party. Which part was which was not universally understood by either the public or many of the police officers. Police commanders alluded to previously agreed perimeters, while we asserted what we understood had been decided. Calling in a supervisor led not to a discussion but to the barking of orders, our mouths agape. The police seized upon the chance to arrest, process and hold us, until our opportunity to be heard had passed. We were mighty confused at the time, but in retrospect the police maneuver was carried out like clockwork.

It seems to be my habit to be blind sided by heavy handed authority. But I hope this does not detract from the principal dynamic at play. I am an ordinary American citizen, with an ordinary citizen’s right to express myself. Even playing within the post-911 limitations placed on our civil liberties, abiding by a “free speech zone,” my right to participate in our democracy is being muted by a false authoritarian concern for public safety.

DELAY AND RELOCATION
Particularly indicative of the police strategy was what they did with Peter and I after our arrest. We were taken across the street to the Quail Lake Loop El Paso County Sheriff substation where we were booked and cited first for obstruction, then for trespass. Forms and fingerprints were completed twice amid pleasant conversation and clarification of the “free speech zone” boundaries. We were informed that we would be free to return to the convention grounds, but that a subsequent breach of the rules would be treated with more severity. Then, instead of releasing us there, or at the nearby Sand Creek police station, an order was received to deliver us to the northern-most police substation in the city 15 miles away. Peter and I were dropped off in the parking lot of the Falcon Substation at Academy Blvd and Briargate, and only then was my cellphone returned with which I could try to arrange a ride. By the time we were able to return to our friends and vehicles at the convention, the 7-10am demonstration was passed.

SET UP?
Several weeks beforehand the CSPD had conducted public meetings for citizens to hear about the convention security measures. I attended none of these meetings, but gained a general understanding from a symposium held by the ACLU attended by a CSPD representative. Another CSPD commander turned up on Tuesday May 12 at the monthly ACLU board meeting to apprise our members again of the city’s plans. It was here we learned that there were two “Free Speech Zones” to be made available to the public. Of particular interest were the now graciously added grassy almond shaped areas adjacent the main steps to the World Arena. From this briefing it was decided to relocate our banners to those parts, as they afforded visibility to all delegates attending the convention, not just those coming from the hotels along Geyser Drive.

On Saturday we discovered that those spots were not being offered to us. And this was the source of the confusion. Despite being reminded that a roomful of ACLU members and lawyers had witnessed what the convention organizers had purportedly offered to be public areas, the police held steadfast that no such close-up access would be given. There would have been no confusion on Saturday if an advance agreement from either side had not been presumed. There would have been less disappointment on our part if an area accorded free speech rights had not been perceived to have been withdrawn.

PROTEST BY FOREKNOWLEDGE OF PERMISSION ONLY
The application of a Free Speech Zone was almost farcical. Police Officers stood at the edge of the World Arena property checking for credentials. Helpers beside them called down the line, warning that no one without credentials would be allowed unto the property. When it came my turn to be asked, I answered that I had none. They were already telling me I could not enter when I was able to get a question in edgewise. I asked: “what about the Free Speech Zone?” They answered: “Oh, you’re here for the Free Speech Zone” and they waved me through. Without a description of where it was, or that it did not extend to the limit of the police tape. An ordinary public would not have known to ask to enter the area, nor about its limits.
Police tape extended toward but did not include areas 8 and 9

FREEDOM OF SPEECH
Of course there would be no problem at all if we hadn’t collectively relinquished the principle of Freedom of Speech. Why has it become so critical to public safety to shield people from each other’s speech? It used to be Sticks and Stones from which we needed police protection.

SURVEILLANCE
The extent of the security measures were leading all to believe that a personage of important political stature would be paying the convention a visit. By five in the morning all the street corners were manned by multiple motorcycle patrolmen. Suited men in dark SUVs were conducting security sweeps into the wooded hillside. Traffic signs on the interstate were warning drivers not to stop or slow along the shoulder. Police vehicles of all stripes were patrolling the parking lots, junior policemen were positioned in pickup trucks hauling coolers full of bottled water. When we arrived at the parking lot, unmarked vehicles converged upon us but exchanged information with each other without having to get out to address us.

Later in the day, Mark and I returned to the Free Speech Zone so that he could videotape my account of what had happened. Another of our party watched as men atop the roof of the Hampton Inn followed us though spotting scopes and pointed what appeared to be parabolic listening devices in our direction. None of which could be considered excessive for security precautions at such an event, although pretty clearly our protests have shown themselves to be of little threat. It would seem the purpose of the exercise Saturday was to get in some practice.

The UN says it may occupy Darfur for 10 years

In talk reminiscent of how the US may militarily occupy Iraq and Afghanistan for decades, the US dominated and controlled UN military is now talking about how it may militarily occupy Darfur for 10 years. ‘Saving Darfur’ is now in march it seems, and it is now obvious just what this actually means. We can see other examples of ‘saved’ places, like Haiti, Iraq, Afghanistan, Kosovo, East Timor, Congo, and all don’t look too saved at all, but just occupied by military troops. Darfur mission may last 10 years: UNAMID general

This raises the issues of how a real Antiwar Movement can be organized, with much of the organizations we presently have full of supporters of war controlling leadership positions in these supposedly pro Peace groups? Almost all the ‘leadership’ consists of Democratic Party voters, who vote for candidates that promote US militarism. Further, under the guise of being saintly non-violent types, much of the membership continues to support the idea of their government called on to ‘do things’ with US troops, in places like Afghanistan and Darfur. We have a supposed antiwar movement at present, that wants to dote on ‘the troops’ even.

Yes, the UN says it may occupy Darfur for 10 years. What a disaster! God save Sudan and all of its peoples. And let’s get these thugs in dove’s feathers out of Haiti, too! It’s time to wake up about the UN, if only the pacifist liberals ever will?

‘Super Delegates’ make the corporate party super undemocratic

Corporations have one big problem in controlling political expression in that all they have is money, not numbers. Tons of money get spent on fabricating false images, manipulating sentiment, and plastering everything with advertisements for the top dogs the corporate world has running in the arena.

Still, sometimes the rabble voters get out of hand, and that’s where the so-called ‘super delegates’ come in as the ultimate corporate trump card. American ‘elections’ are not a democratic system at all, and its design is just to appear to be democratic without actually being so. ‘Super delegates’ are mere icing on the cake of undemocracy that we suffer with every 4 years.

Go figure, what’s is democratic about the government financing all the primaries for the 2 corporate parties in the first place? Nothing. As if the corporate world is not already buying the elections before hand, the corporate government moves in with hundreds of millions of corporate dollars to show its favoritism to the 2 official corporatized parties. It is one thing for the government to finance the real election, but the primaries are not that at all since they are just party functions. In short, they are a facade of procedure that the 2 corporate parties (with a big push from the corporate media and corporate government) put out to pretend to being democratic, when in reality they are no such thing at all.

To many, electing a Black American will represent ‘change’. To many, electing a White woman will do so. And to many, just getting George out of office will be all that is needed for them to think that the country is moving forward once again. Wrong. Until we establish a political system that has more than the most pathetic pretense of being functionally democratic, we are all on the super-highway to getting screwed yet even more than Bush has already done to the country. Corporate looting of our nation and to the world as a whole cannot stop without us beginning to construct a democratic system where none now stands. We need a democratic America, and that is not an America led by either the Democratic or Republican parties.

Televised football is the fascist pageant

Offensive projectileI’ll tell you, this is the heart of the beast. Colorado Springs may be the apex of US religio-military nonsense, but the American beast is television, the rotten core of which is Fox TV, and its absolute poisoned heart is televised football.

Football is crass, violent, anonymous, uniformed, incorporated and a perfectly trivial distraction from all else. Nothing new, but I’d like to offer this impression.

For starters, have you noticed, the camera coverage of the cheerleaders is from exactly the angle a pervert would ask? In uncouth parlance it’s called “upskirt.” How do you suppose the camera bearers excuse themselves panning across the cheerleaders at bare thigh level? It’s neither a spectator POV, nor that of any athlete, unless he’s Chucky, strolling well wide to receive the cheerleaders. When the girls leap on and off the shoulders of their male counterparts, the cameras explicably-enough climb to male shoulder level.

Of course it’s not a matter of impolite cameramen getting up from their knees. The cameras today float on wires like surveillance robots to produce tailor-made angles. Being my point I suppose.

Thanks to these robots, the audience is afforded action shots without precedence. As a result, we can follow the action practically outside the context of what’s taking place. It’s great isn’t it? Who cares what bones are getting crunched outside the frame, follow the ball. The action is violent but without consequence. Athletes are expected to defy physics for cameras themselves liberated from constraint. Catch without thought to how you’ll land. The players are so jacked up on painkillers and adrenaline that the impacts will register only later. Off camera.

That’s how we fight wars, isn’t it? Eye on the bouncing ball, all damage is collateral, the players expendable.

Players jump all over themselves enthusiastically after successful plays, but lo, have been forbidden to posture victoriously in the end zone. The unsportsmanlike penalty is unpopular and proving difficult for the athletes to avoid. I can tell you what that’s about. The rich white man doesn’t mind his gladiators amping themselves for a challenge, but he’ll be damned if he has to witness what will almost always be a black man crowing about his superiority. Rich white men can propagate rap music to the masses like crack cocaine, but they’re not about to abide the braggadocio themselves. When did acting too-big-for-your-britches become unsportsmanlike behavior? When it proved to make heroes of the likes of Muhammed Ali. Who went to jail sooner than go to Vietnam.

The media coverage is equally restrictive about which athletes it acquaints with viewers. Do you think Peyton Manning is the only charismatic quarterback, or rather the only safe spokesman? The videotaped segments of players introducing themselves have become completely stilted in formality. Post-game interviews mandate that athletes wear some official headgear which casts their features in shadow, preserving their anonymity. They remain monosyllabic gladiator brutes who otherwise wear helmets, increasingly now with visors like so many Power Ranger Storm Troopers.

The talking heads attendant to the bowl games, whether ex-athletes or sportscasters, were all wearing the Neocon uniform, the black suit, and new for 2008, a four button jacket buttoned to the top like a veritable military uniform. Only Brent Musburger had enough clout to decline the odd conformity. Black used to denote caretakers. Fully buttoned suits were for tailors and soldiers. History has never looked fondly on soldiers who wore black.