Lawsuit may test Bush's free-speech views

Case filed Monday by Texas protesters pits freedom of speech against

A lawsuit filed yesterday against the administration of Gov. George W. Bush - the third major case against his office - may provide a window on the presidential front-runner's views on free-speech rights and his tolerance of civil protest.

The suit, brought by the American Civil Liberties Union and a group of environmentalists, argues that Governor Bush and state police violated free-speech guarantees under the state constitution by arresting protesters outside the Governor's Mansion in April.

Charges against the protesters, for blocking the sidewalk and failing to obey the order of police, were later dropped for lack of evidence.

But their suit offers a case study in the growing tension between two fundamental principles of American law: the freedom of speech and the state's responsibility to protect its elected officials.

If Bush fights the charges, as expected, he has a fairly solid legal foundation to stand on.

"There's always a political tension between freedom of speech and the need to protect public figures," says Scot Powe, a First Amendment specialist at the University of Texas here. "But the law has been unduly clear on this issue. It really does upset the country if a presidential candidate is assassinated. It's an overwhelming goal of the state to protect elected officials."

If this case turns into a scenario of free speech versus public safety, he adds, "the governor wins." But to win, the Bush administration must prove that state police applied the "no-protest" law equally, regardless of the political viewpoint.

"They've got to have a blanket rule," says Dr. Powe. "If the state would not clear out people who said, 'Governor Bush, we love you,' then they may have trouble" defending their actions toward anti-Bush protesters.

The governor's office had no comment on the charges as of press time.

A whirlwind of charges

The lawsuit comes even as the Bush administration fends off two whistle-blower lawsuits from state employees, and his presidential campaign deals with amorphous charges about Bush's alleged drug use years ago.

The strict security measures used by the Texas state police to protect Bush contrast sharply with those of another one-time presidential candidate, Arkansas Gov. Bill Clinton.

"The Clinton campaign was a little different," recalls Art English, a political science professor at the University of Arkansas in Little Rock. "Here's a guy who used to run down Main Street to the McDonald's. It was only when he started to win some primaries that things seemed to change a little bit."

But even when protesters did tail the Clinton-Gore campaign, Democratic campaign officials treated them with kid gloves.

For instance, when activists in wheelchairs stormed the Clinton-Gore campaign offices in San Francisco to call for better treatment of disabled Americans, officials opened the doors and even provided sodas. It was only when protesters chained themselves to tables that police were called in to cart them off.

Arrests were a 'surprise'

The recent arrests in front of the Governor's Mansion took some longtime political observers by surprise. They occurred during the spring legislative session when lawmakers were deciding whether to revamp clean-air laws.

Bush defended the actions of his security detail at the time, saying that "the rules have changed" on where and when activists may picket outside the Governor's Mansion.

Plaintiffs' lawyers respond that the governor was unable to provide those written rules after repeated requests and they eventually were told by state officials that the decision to arrest is "left entirely up to officers on the scene."

Even though the charges against him were dropped, a protester, Rick Abraham, says he brought the suit because his being jailed prevented him from testifying before lawmakers about a new clean-air bill. He also charges that state police officers had no cause to arrest him, since he and other protesters were picketing peacefully and following state police orders to return to the "designated protest area."

"They told me, 'You're blocking the sidewalk,' even though we were walking single file," says Mr. Abraham of Texans United, a Houston-based environmental group. "I was walking away when they grabbed me ... and put handcuffs on me."

Legal experts note that federal courts have offered mixed rulings on how to draw the line between free speech and protecting public officials.

Courts have allowed states to prohibit protests within government facilities or even on courthouse steps, for instance.

But federal and state courts have also tended to allow picketing on public streets, in parks, on sidewalks, and even in shopping malls.

"There are a thousand reasons why a government might close a sidewalk, and most of them are no good," says David Kahne, an attorney who represents part of the ACLU's team.

"The state has articulated two reasons for the charges: one, that there was construction at the Governor's Mansion, and two, that the protesters were blocking the sidewalk," Mr. Kahne says. "They're completely wrong, and they're so wrong the county attorney dropped the charges."

A view from the scene

Jay Jacobson, executive director of the ACLU branch in Austin, attended one of the protests. With a chuckle, he recalls how a state police officer walked up to a colleague, Ann del Llano, and asked her if she was a protester.

She said, "no," so the officer went on to grab someone else who was doing the same thing Ms. del Llano was doing: standing on a sidewalk.

"I couldn't believe he asked that," says Mr. Jacobson, himself a former prosecutor from Brooklyn.

"It was so blatant, I didn't have the presence of mind to get the officer's name."

(c) Copyright 1999. The Christian Science Publishing Society