This isn't really my diary. I'm posting it on behalf of my respected friend, Garrick Beck, a good man who ran afoul of Samuel Alito in the pursuit of his rights under the First Amendment, and spent three months in the Federal Prison Camp at Florence, Colorado for his pains.
As Melody Townsel once turned to this community in an effort to bring her experiences with John Bolton to the attention of the committee holding his confirmation hearings, so Garrick has turned to us in the hopes that the letter he sent to Sen. Leahy will receive some notice if it is posted here. Unlike Melody, he doesn't want or expect to be called to testify, but merely that Senator Leahy, or some other Senator on the committee, would question Alito on this topic, which seems not to have attracted the kind of attention that Roe v. Wade and executive authority are getting.
Please read on for Garrick's story, and the letter he sent.
I rarely post diaries, but I am going to ask that you recommend this one, not for my stellar writing, but so that perhaps some Senate staffer might read this and bring it to his/her boss' attention. The remainder of this diary is entirely in Garrick's words, lightly edited by me:
In the late 1960's and early 1970's a circle of friends composed of anti-war activists and returning Vietnam veterans conceived of a get-together that would highlight the positive aspects of the peace culture of that era: harmonious diversity; environmentalism; a renewed spirituality; a non-racist, non-sexist, non-ageist society; the provision of basic human needs as the willingly-undertaken responsibility of a commonwealth without hierarchy or capitalism. Thus was born the Rainbow Gathering, an event that has been held for free on public lands in various states annually for the past 35 years.
Over the years teams of people from the Gathering worked with local Forest Service employees and State or County officials to monitor water, make decisions about land usage and traffic, and to work together to deal with the occasional misbehaver. Medics, nurses and doctors worked with local health officials. Rainbows and Forest Officers developed an "Operating Plan" that apportioned areas of responsibility for protecting these public interests. And this worked extremely well for decades.
There have been no charges of environmental damage in all that time. Tiny communities in rural America have benefited enormously from the economic impact of thousands of people visiting and buying supplies and services.
But the United States Forest Service had other ideas. As word of these non-commercial, non-advertised events spread, Forest Service bureaucrats in DC, far removed from the field, decided that it was their duty to regulate these peaceable public assemblies. If they had only dealt with environmental and public safety concerns there would have been little conflict. But they were frustrated by the freeform style of the events as well, and they wrote into law demands that all such assemblies must designate officers or agents in order to receive governmental permission to gather. In other words: no more public assembly without being organized and having a system to select and ordain leaders. No more peaceable assembly for groups without a codified, hierarchical structure.
Along with this, they added other conditions concerning liability; removed judicial review of permit terms or
conditions that might be unfair or impossible to meet; and ruled that large groups assembling for mere recreation would not have to meet the same criteria as those assembling with an idea to express.
In several extended law cases in the 1980's two sets of these regulations were discarded as unconstitutional. In the mid-1990's a third set was installed and has since been found to be constitutional. To be fair, these laws have been upheld in many Federal Cases which were contested in Wisconsin, Pennsylvania, North Carolina, Oregon, Arizona, Montana and Missouri among others, in Magistrates Courts, District Court, and, in my case, the 3rd Circuit Court of Appeals. In several of these cases, however, the courts either severed certain sections of the regulation as unconstitutional, specified more narrow applications on clauses, or restricted interpretation to much more specific issues that involved public health and safety. Most of these cases resulted in federal judges levying only miniscule fines, as if to caution the prosecutors that these were very minor offenses. In some cases prosecutors were directly told not to burden these important courts with frivolous cases which resulted in no property damage and no personal harms.
I believe that the difference between these rulings stems not from the rewriting of the law but from the difference in who's on the bench. Judge Samuel Alito was one of the judges who ruled in favor of extending the government's power to control who can and who can't peaceably assemble.
Over these past 35 years I have been in no other trouble with the law. I am a small business owner in Santa Fe, New Mexico where I have lived and worked for the past decade. I am happily married and have three grownup children.
____________________
The following is my letter to the ranking member of the Senate Judiciary Committee:
December 20, 2005
Senator Patrick Leahy
Senate Offices
Washington, D.C. 200xy
Dear Senator Leahy,
I am writing to you to convey information concerning Judge Samuel
Alito's judicial record, which I sincerely hope will prove valuable in
your committee's upcoming hearings.
Judge Alito was one of the three appellate jurists who heard my case
concerning rights of First Amendment protected assemblies on public
lands (US v. Beck, 3rd Cir. No. 00-1734). This case resulted in a
diminishment of all Americans' rights to assemble on National Forest
System land for expressive purposes.
His concurrence in this ruling went contrary to two previous similar
cases in which I was also involved. In both of these previous instances
strikingly similar U.S. Forest Service regulations were overturned as
unconstitutional (US v Israel, Arizona 1986; US v Rainbow Family, Texas
1989).
The regulation which Judge Alito upheld (and which is still on the
books) requires
a) expressive assemblies (of over 74 persons) to go through hoops and
paperwork which other large groups just assembling for recreation do
not have to follow;
b) any expressive assembly of more than 74 individuals to select and
designate agents or officers to officially represent the individuals
assembling - even though the individuals may be assembling in part to
demonstrate that assemblies of people can occur without formal
organization;
c) that the group submit to terms and conditions that can be added to
a permit even after a permit is signed, thus effectively adding a
second tier of qualifications that is not subject to judicial review;
and
d) that any person signing such a permit takes on untold liabilities
concerning the actions of any of the other participants.
These rulings Judge Alito concurred with run contrary to 200 plus years
of American jurisprudence concerning rights of public assembly and
expression, including priceless rulings put in place over previous
generations right up thru the recent civil rights victories in such
famous cases as Claiborne Hardware and Shuttlesworth. The scope of this
letter does not give me space to enumerate all the losses of liberties
of expressive assembly that this one case represents.
I (and my two co-defendants) were the first people ever jailed under
the new regulation (32CFR251.54.10k), and Judge Samuel Alito apparently
felt that despite the fact that there was no claim whatsoever
concerning damage to any Federal lands or property, nor any claim of
harm done to any person, we merited time in Federal prison for having
contested this regulation.
To round out the picture you should know that the Forest Service and
Agriculture Department, in the interests of avoiding further ticketing
and jailing of expressive assembly participants, have since met
repeatedly with event participants, then issued formal letters, and
developed new wording placed in Group Use Permits that effectively
sidesteps some of the draconian clauses of the current regulation.
Regardless of that, the fact stands that Judge Alito found it
reasonable to diminish the Freedom of Peaceable Expressive Assembly
enshrined by our nation's Founders in the First Amendment to our
Constitution.
I would be pleased and willing to provide your staffers with any
details, citations, documents or information concerning this case. In
the public discussions over Judge Alito's qualifications and lack
thereof I have seen no reference to this ruling at all. I believe that
it adds to the picture of a man for whom the values of the Rights of
the American people are considerably less than our Founders intended
and considerably less than the American people deserve.
Thank you for your time in reading this.
Most sincerely,
Garrick Beck