Creative Direct Action in the Era of the PATRIOT Act Arrested for Stickering, Biking and Other Misadventures By BENJAMIN SHEPARD

Aug 31, 2019, 

The RNC was one of the worst experiences of my life. Everything changed. It w as hard to say much worked.  An Orwellian nightmare descended upon  our city.  Critical Mass was attacked. Our movements were shut down. Preemptive arrests took people off the streets. I was jailed by plain clothed  police officers.  And few of us were ever the  same.  Here is a dispatch I wrote at the time. 

March 2005

"What took you so long?" the property clerk at One Police Plaza exclaimed with a smirk as I gave him my property receipt to get back the "arrest evidence" confiscated during at the Republican National Convention (RNC) back in August 2004. With charges of "criminal misconduct" pending against me, evidence of my "criminal" activities included my checkbook, cell phone, and work organizer, a book, and a few political stickers, including my favorite the ubiquitous: "NO, CHENEY, YOU GO "FUCK YOURSELF!"". These materials had languished in the hands of the police department for the seven months after plainclothes officers arrested me on my way to work on August 31. In the months afterward, I was left to regroup without my organizer, cell phone, telephone numbers, or checks. In between court dates, isolation increased. But that's the point isn't it? Waiting in line for my stuff once it was all done, I noted a sign declaring the imperative of police "impartiality." Not that any of us in that line had been treated in an impartial manner by the praetorian guards who had cleared the streets of our fair city to make New York appear welcoming to the Republicans, who had brought us this Orwellian nightmare in the first place. Few activists could expect such "impartiality" from the police before the RNC or, for that matter, any day since the 9/11 terrorist attacks or the passage of the Patriot Act soon thereafter.

The following is an account of activist experiences of being arrested for stickering, biking, and other misadventures with civil disobedience in the post-Patriot Act era. The first part of the essay looks at my experience of being preemptively arrested for stickering during the RNC. It is followed by an account of the struggle against the attack on Critical Mass bike rides before and after the RNC. After being labeled "bike hooligans" by the local press, Critical Mass participants endured a crackdown which continues to this day. Barbara Ross, a 41-year-old human resources manager and urban bike commuter, explaines, "The NYPD has arrested me twice and confiscated my bicycle three times for the so-called-crime of bicycling without a permit." The third and final section considers the use of public hysteria to justify preemptive arrest and the control of mobilization structures witnessed during most of the recent convergence actions, including the RNC. "The rule that long week was preemptive arrest," explained Eugene Karmazin in a recent story about Critical Mass (2005). "Simply put, anyone seemingly dissident was forcibly removed from the streets, effectively removing them from public discourse as well. More than 1,800 arrests where made during the RNC, more than at any prior Republican or Democratic convention in U.S. history." This pre emptive approach has become pro forma for policing public space. "The last Friday of every month, the NYPD turns Union Square Park into a prison yard," Madeline Nelson, a bike supporter, explained before the May 2005 Critical Mass ride. "They line the park and surrounding streets with scores of police vehicles and hundreds of uniformed and undercover cops waiting to scoop up anyone who happens to be there. Who is authorizing the use of taxpayer resources to suppress a public gathering?"

"Why are you doing this?" the Reverend Billy asked a policeman as he prepared to arrest a group of bikers before the March 2005 Critical Mass. "Well," the officer is said to have declared, "everything changed after 9/11." In the days after 9/11, panic over public space and the movement of those within it increased, and restrictions on the public commons grew. By the time of the RNC, acts of political freedom--public performances, bike rides, and old-school civil disobedience--were targeted and restricted. Random acts of alienation-crushing fun were targeted and isolated. For me, much of the problem began the morning of August 31 when I planned to participate in some street theatre.

September 1, 2004

I sent the following email message out to my affinity group, which I had not been able to meet up with for the August 31 day of direct action:

"Well, yesterday was a weird day. At 10 am, I was walking to work in the Bronx and was pulled over by two plainclothes police officers from the New York Police Department. They told me, "Ben Shepard, there is a warrant for your arrest." I was driven down to the Chelsea Piers holding area, searched, and held in a chainlink and barbed wire holding area, where I spend most of the day in a solitary holding cell without seeing lawyers or being told what the charges were against me. There they confiscated my papers, a book, and some stickers to be put in the "evidence" folder"; my clown army stuff--including funny hat, feather duster, silly toys, RNC Clown Delegation pass--was put in another bag

My affinity group was the Clandestine Insurgent Rebel Clown Army (CIRCA), a spin-off of Reclaim the Streets (RTS) New York. The group had morphed from street party organizers (see Duncombe, 2002) into guerilla theatre performers who had staged actions as the Billionaires for Bush and Gore at the 2000 RNC in Philadelphia (Boyd, 2002), the Students for an Undemocratic Society during the Bush inauguration in 2001 (Grote, 2002), a skit between labor organizers and sweatshop owners the next May Day (Bogad, 2003), an Absurd Response to an Absurd War once war entered the equation (Shepard, 2003a,b), and later as Patriots against the Patriot Act once the notion total war would be used to restrict movement in public space (Shepard, 2004).

As we had done many times in the past when we ran out of new ideas, we turned to the creative work of RTS London (see Jordan, 1998). When RTS London planned a guerilla gardening action for May Day 2000, we followed suit, organizing our own gardening action the same day (see Duncombe, 2000). Larry, a member of RTS New York who'd had a teaching assignment in Birmingham the previous year, learned the clown shtick and performed it when Bush visited London in the Winter of 2003 (see Bogad, 2004). In the months before the RNC, a few of us felt there was not enough play or rambunctious ness in the preparations or possible theatrics planned for the convention protests. So we recruited Larry to help the New York RTS chapter organize itself as part of the Clown International (see Bogad, In Press). We also put him to work writing our "Anti-Official Communiqué," which explained the role of the Clown Delegation at the Republican National (Clown) Convention:

We, the clowns, jesters and tricksters of the Clandestine Insurgent Rebel Clown Army (CIRCA), are delighted to host the Republican National Clown Convention (RNCC) in our fair city of New York. We are so gratified that the Radical Right has brought their grand circus to our humble town, and we are eager to attend!

We are particularly inspired by the Head Clown, DUBYA, a fool of globe-crushing power.

DUBYA is a truly talented trickster; transforming his ruling-class-wastrel life story into a faux-farmer media persona; creating false WMDs and conjuring fake connections to Al Qaeda to justify the invasion of Iraq; doling out a plastic turkey to the suffering troops there for the news cameras; giving speeches before false backdrops of "MADE IN USA" boxes to herald the "comeback" of the economy he has despoiled for his inner circle's gain. And now he and his circus come to co-opt the memory of 9/11 and turn our city's trauma into their triumphalism. He's extremely funny, though we think he may be taking his tragic joke too far.

The key moment for CIRCA was his fabulous flight suit appearance on the aircraft carrier, where he angled the cameras so the nearby shoreline could not be seen, where he converted his draft-dodging into pseudo-heroism, where he took the debacle of an unnecessary war and occupation and summed it up with "Mission Accomplished." What a fantastic clown! Bravo! Encore! Two Thumbs Up!!! We laughed, we cried, we continued to count the dead.

CIRCA wishes to express its admiration for the horrific hijinx of Dubya the Uber-Clown by dressing in flight suits and strutting our thumbs-up stuff on the streets of Manhattan. We will imitate our hero by playing soldier, and playing golf, while Rome burns. If we also pretend to indulge in his narcotic pastimes of times past, it is only in flattering imitation of our Great Leader.

Our credentials are clear. Our hearts are open. Our flight-suit crotches are bulging. We are here to attend the Convention and lovingly declare:

MISSION ACCOMPLICATED!

We premiered the Clown Army during the NEO-CONey Island Block Party in July, organized by the NoRNC Arts Clearinghouse and the Change You Want to See Gallery, and later during the August 29 protest to great reviews from all the local papers.

As the RNC protests unfolded, creative action was among the most effective ways to bring attention to a cause without putting protestors in too much harm's way. Not content to merely dress as clowns, we made sure unofficial gesture and play and motion were key parts of our act. Thus, we ran through the crowd, blocking our entrances with gestures of envy, love, and disgust; worshipped fellow clowns such as the president and Ronald McDonald; pranced, mumbled jibberish, played on the theater of the ridiculous; and riffed on Nixon's internal dialogue with himself and his metal detector on the beach. (Surprisingly few picked up on the reference!) The shtick included a number of potty jokes about missles and phallusus, including grunts of, 'Suddam!!! Suddam" with hands down our pants, in homage to the Bushies' obsessive, almost sexual, pursuit of the former Iraqi dictator. Much was light absurdist theatre, including a riff on the MD search, held with members of the crowd, which included butt sniffing and more mature, sophisticated forms of political satire, such as a mock Coke binge in homage to our presidential Clown's celebrated pasts. This included improvisational moments, such as rushing to bow down in front of a blow up doll of someone was carrying of Ronald McDoland, whom we coveted as, "Our Leader!!!" Or we paid homage to Bush's infamous "watch this drive" scene from the movie Fahrenheiht 911, before screaming "PANIC!" as if bombs were dropping, and running into walls, telephone posts, and other clownish fun. When this slowed, some regrouped for further inspiration from our Bush "mini me" puppet held high above to be honored and praised; others considered with the theatre of the ridiculous jibberish. The former took cues from the doll and repeated his Mao-like Bushisms and recited these bits of wisdom with monotone, brainwashed, Mao like revolutionary fervor:

You can't take the high horse and then claim the low road.
I know the human being and the fish can co-exist peacefully.
Verbosity leads to unclear inarticulate things.
I stand by all the misstatements that I've made.
A low voter turn out is an indication of fewer people going the polls.
It's clearly a budget; it's gotta lotta numbers in it.
The future will be better tomorrow.
I know how hard it is to put food on your family.

The message, sent from God to Mini-Bush, was repeated through us. Core chants followed in a call and response fashion: "Rarely is the question asked," said the first group"is our children learning?" responded the second. Our clown leader Monica, a choir member with the Church of Stop Shopping, led us in a wonderful version of the Village People song "YMCA":

Young men, there's a place to be free
We said young men, you can bomb oversea
You can do that without much safety
Me? I'll be golfing at the ranch. Yeah!

We spelled "BUSH" as the rest of the group chimed in with the chorus:

Its fun to snort coke with B.U.S.H
Its fun to blow cash with B.U.S.H.
Bombing families all day
Takes my worries away
Its a constant rodeo!

When the police arrived, we either cowered, sniveling and begging for forgiveness, or followed the Monty Python "run away" routine and sped off to the nearest subway. The thinking behind the skits was that as the War on Terror continues to use the Patriot Act to link protest with terrorism, such forms of playful, unthreatening, yet still subversive engagement become a compelling model of political engagement. The press lapped up the story. "Acts of creative street theater stole the show, with creative expressions suggesting that America's activist movement may have come of age," one observer noted (Wheeler, 2004). As this writer described the August 29 clown shtick:

Running helter-skelter down side streets perpendicular to the protest thoroughfare, the Clandestine Insurgent Rebel Clown Army played a virtual game of freeze tag with journalists and photographers before suddenly retreating in chaotic fashion. They wore dirty green army fatigues, fake passes identifying them as Republican delegates to the convention, and ridiculous clown paint on their faces.

"Our hero, Dubya, is in town for the Republican National Clown Convention, so we've got our credentials," explained Larry. "We're the Big Top delegation, from right between Kansas and Missouri. We're ready. We're just as big clowns as they are" (quoted in Wheeler, 2004). Put to explain the clown schtick, Herbert Marcuse's suggestion that that true engagement between arts and activism offers a route to "aesthetic transformation" is instructive. Given the right sense of fun and theatrics, these connections "represent... the prevailing unfreedom and rebelling forces, thus breaking through the mystified (and petrified) social reality, and opening the horizon of change (liberation)" (1978: xi). Few of us--or anyone else who saw the Clown Army in action--could doubt its propensity to meet such a challenge. And, it appears, this is why the Clown Army represented a threat. There was no telling how much of an impact the group might have. So, it was no surprise that the police prevented us from reprising our skit during the day of direct action and civil disobedience planned for August 31.

August 31, 2004: Back at Pier 57

"Don't look at me," a policeman groaned before he told me to take off my shoelaces and put me through the system. The process began at Pier 57, on the West Side of Manhattan. Here, police cataloged the "evidence" against me: a handful of stickers declaring "A31: DUMP BUSH" ("graffiti instruments," as the city called them), a child's megaphone I borrowed from my two-year-old daughter, a feather duster, a list of locations of for actions. Most of the police officers thought the clown stuff was funny. What they did not find amusing was my copy of The Civil Disobedience Handbook: A Brief History and Practical Advice for the Politically Disenchanted, edited by James Tracy. Inside the book, the police noted the autographed dedication from the author, whom I had met before the previous Friday night's Critical Mass ride: "Ben, keep up the inspiring organizing and writing. We'll conspire again soon. Hasta La Victoria!!!" I'd forgotten the book was in my bag. Yet, I knew I was sunk when they found it. A bearded Henry David Thoreau was pictured on the cover. "What's this, anarchism?" several policemen asked. "Is he one of those violent anarchists?" they asked pointedly. No explanation of Thoreau's take on peaceful civil disobedience would convince them otherwise. Paranoia had reigned throughout the summer. Police instruction manuals issued before the RNC protests had warned that violent anarchists planned to take hold of the city using tricky, dangerous tactics, including releasing marbles to wreak havoc on police horses, using frozen balloons as weapons, and marching bands to lead the cavalcade of danger. No wonder the police were determined to keep a clown in a guerilla theater troop from hitting the streets during the president's coronation ceremony.

"What are you guys going to do when the president gets reelected?" one of the officers asked as I was being processed. "Well, you guys aren't going to get the new union contract you've been looking for," I thought, though I said nothing. Still, most of the cops were inocuous and willing to talk about the weirdness of the day at the pier and their own difficulties with procuring a new contract (McPhee and Lemire, 2004).

Once the mishigas was over, I was alone in my cell. I had spent time in jail cells before, but never without other arrestees with whom to commiserate. I had expected to see others from the summer's organizing efforts. Instead, I was accompanied only by silence. With the exception of the police and about four others in the adjoining cell, the pier was completely empty. I thought about the Bader Meinhof gang members who spent years in solitary confinement during the 1970s and slowly lost their minds. By early afternoon, members of the FBI and the Office of Homeland Security came to interview me. They inquired as to whether I knew anything about the "violent anarchists" we had all heard so much about. "I don't know why you are here," one said. "These guys are all really flipped out about that book you have."

As soon as the feds left, my arresting officers came back to ask me with whom I'd done my organizing. Despite Police Commissioner Raymond Kelly's insistence that such forms were no longer utilized, the questions followed the lines of the "demonstration debriefing form," which had been ruled unconstitutional (Rashbaum, 2003a,b). "Everything in your bag says 'A31,' did you work with that group?" he kept asking. Having tried to be genial all morning, I finally told them I could not speak without my lawyer present. They then left me alone. And one of those weird moments that sometimes occur with police unfolded. When my arresting officer came back, he walked close to the wire fence and said, "I know this must have been scary, but you have been very cool about it. I appreciate it." I nodded and thanked him, wishing he'd just let me out. "We're going to get you out of here," he explained. Then they walked me to the car.

To the Tombs

"I still have not been told what I'm being charged with," I said in the car on the way from Pier 57 to Central Booking--or "the Tombs," as local activists describe the cavernous underground jail under Center Street where many arrestees are charged and sentenced. "You are going to laugh when you hear what this was all about," my arresting officer replied. Part of the punishment of the Tombs is the tedium of the fingerprinting identification process, which can take hours. There seemed to be five policemen for every one arrestee. This loose-ends feeling creates a frat house type of environment for the police, who jovially chat among themselves and toss footballs--sometimes over the heads of the "prisoners," as they called us--while they herd one handcuffed arrestee at a time through a tedious litany of steps from pat-downs, to confiscation of shoelaces, pens, and other possibly dangerous property, through fingerprinting and other mundane details. There is a sense that the recent Abu Ghraib prison violations could easily occur in a context such as this. By far, the greatest duress of the Tombs is the boredom. "If I count the cracks on this ceiling one more time, I'm going to kill myself," the late Keith Cylar, a member of ACT UP and Housing Works, once related to me as we went through the same tedium. "Get me fuck out of here."

At the Tombs, I shared my holding cell with some Vassar students and some San Franciscans arrested for performing on a subway, and another group arrested for performing on the street. In a city where a day rarely passes during which a subway car is not transformed into a performance venue for some sort of hustle, the mere act of students lying down as if they were dead Iraqis was enough to invite the arrest of the entire group. Most were charged with disorderly conduct.

At some point as I was being processed, I injected myself into the banter of one of the officers with a particularly thick Long Island accent, who had been commenting on everyone's charges. "So what did you do?" he asked me. "I still don't know. I haven't been told a thing. I was picked up on the way to work." He looked puzzled and shuffled through some of his papers. "Oh yeah," he said. "You were the one arrested for stickering."

Given that I was one of the first arrested, I was also one of the first released around 9 pm. Only when I met the judge did I first hear about the charges against me: four counts of criminal misconduct for "criminal mischief," "graffiti," and "possessing tools of graffiti." The alleged graffiti-ing was said to have taken place four days earlier. Apparently, an undercover policeman had seen me posting "A31: DUMP BUSH" stickers in Brooklyn and had followed me up to the Bronx to find out where I worked. But instead of arresting me at the time of the alleged "crime," the city apparently opted to wait until August 31, the day of planned direct action against the RNC. Later many would suggest that given I had found the space the A31 spokescouncil meetings, the police targeted me, as they had many of the other organizers during the RNC (more on this later in the essay). Yet, the morning I was arrested none of the other A31 organizers were inside Pier 57. It was the strangest bust I had ever undergone. As I sat in the cell starring at the barbed wire, I thought about the $100 million spent on security for the RNC protests alone, the number of full-time cops it took to arrest me and put me through the system. And all this because of the content of a sticker.

Stickering as an Act of Revolution

Throughout much of the summer of 2004, our daughter, Dodi, had become fixated on stickering, placing her stickers on doors, in books, in the halls of our building, and so forth. I followed suit, placing antiwar stickers on her crib and her dollhouse. Almost everyone loves to play with, share, and display great stickers--children, baseball card collectors, artists, even political activists. In their purest form, stickers create an adhesive means to send a colorful message to the world.

Take the AIDS activist group, ACT UP. In their earliest years, a spirit of cultural play was intimately entwined with the group's work. This could be witnessed in the group's demonstrations in the streets and in its outreach materials--the stickers and posters found in bathroom stalls, corners of sex clubs, fine art galleries, and, most importantly, the public commons. Throughout the late 1980s and 1990s, the striking "Silence=Death" stickers (featuring an inverted version of the pink triangle symbol the Nazis forced homosexuals to wear) could be found on streets from New York to San Francisco, from Paris to San Juan. "Stickers bearing the haunting image have been plastered on subways, payphones, billboards, even the backs of unsuspecting policemen's jackets; it has become as familiar and desirable a part of Manhattan's bombarding visual landscape as the similarly shaped Mercedes Benz emblem," member Alisa Solomon recalled (1998: 448-9).

The "Silence=Death" stickers and posters were an instant draw for ACT UP's Monday night meetings. Patrick Moore, another early member, recalled a feeling of awe, being "forever changed by something as simple as a poster," when he first moved to New York. "In 1987 I began seeing a remarkable poster on the streets of downtown New York. The poster seemed to resonate with a new kind of energy, with its glossy black field interrupted by a single pink triangle." Small type at the bottom of the poster questioned: "Why is Reagan silent about AIDS? What is really going on at the CDC? Turn anger, fear, grief into action." The stickers and posters were instantly effective at speaking to and drawing gay men and lesbians to participate in ACT UP. They proved so successful that ACT UP members used a Spanish translation to help organize a chapter in Puerto Rico. Moises Agosto, who had done street outreach for the group, recalled:

We would go with our ACT UP outfits--little short jeans and boots--and go to people, smile and put a sticker on their chest. They would go, "What's this?" We would say, "Come to this meeting." It was amazing because then the other people came--the other ACT UP members, other Latinos, and also the non-Latino members in some two weeks, we had a meeting of like 200 people.

Over the next decade, this effective organizing strategy would draw countless members to the group, both in New York City and across the U.S. and around the world.

However, this outreach approach was not without its detractors, who were not always pleased with the content or method of these guerilla promotional activities. For example, in 1989, ACT UP member Bill Dobbs was arrested at Yale University for displaying 11x17 posters with the words "Sex Is" and showing images and texts from old sexology manuals deemed "obscene." The charges against Dobbs were never dropped (Crimp, 2002: 158).

Some 15 years later, Dobbs--like many old ACT UPpers--had become intimately involved in the antiwar movement. In the summer of 2004, as a spokesman for United for Peace and Justice (UFPJ), he used small concise sound bites to highlight the First Amendment implications of the group's battle with the city to obtain a permit for a mass rally in Central Park on August 29, the day before the start of the RNC.

Dobbs' UFPJ colleague, L.A. Kauffman, maintains her own place in stickering lore. Kauffman, who was once arrested for a "fax zap" on a public official (Kauffman 1998), who worked with Absurd Response Project before joining UFPJ helped unleash a torrent of antiwar stickers during the days before the Iraq invasion in March 2003. "All War All the Time?" the tiny pink and black stickers, found throughout New York's street's in 2002-3, asked, concluding, "Log on, plug in, stop the war; Mobilize New York." It was impossible to walk through New York City in 2002-3 without seeing these stickers. Another sticker featured a picture of the globe with a flag proclaiming "The World Says No to War, Feb. 15." Again, it was difficult to find a street, subway car, or mailbox in the city that was not adorned with one of these stickers. Since the campaign began in the fall of 2002, New York activistsdistributed more than 900,000 pieces of literature, including 14,000 of Kauffman's leaflets that had been downloaded off of the internet.

In the summer of 2003, when two of the UFPJ stickers were found on a shrine for fallen firemen who had been lost during the World Trade Center attacks, it triggered a backlash. Dobbs was forced to defend UFPJ and its stickers. By the following summer, the New York City Council moved to criminalize the distribution of such stickers, while holding the distributor accountable. Council legislation stated:

There shall be a rebuttable presumption that the person whose name, telephone number, or other identifying information appears on any sticker or decal affixed, attached or placed by whatever means in violation of subdivision a of this section violated this section by either (i) affixing, attaching or placing by whatever means such sticker or decal or (ii) directing, suffering or permitting a servant, agent, employee or other individual under such persons control to engage in such activity.

Activists initially laughed off the threat of being arrested or charged with making or distributing stickers or posters throughout most of the summer of 2004. (After the law was proposed before the City Council, it was difficult to assess whether it was actually passed). Regardless, enforcement of such acts of vandalism had been part of "quality of life" policing for well over a decade. And activists had long been playing cat-and-mouse games with the police over the practice. As early as 1997, for example, neighborhood members were arrested for placing posters advertising a garage sale (Dillon, 1997). The owner of Meow Mix was charged with posting advertisements for bands at her club. By 1999, Reverend Billy was charged $1,000 per poster for advertising his shows. The crackdown on advertisements for garage sales, Meow Mix events, and Reverend Billy shows--like "quality of life" policing targeted against gardens and cruising spots--fit into a pattern of attacks on events where members converge to build community.

In response to this new politics, the Lower East Side Collective posted the following message:

WARNING!

Do Not Read This Poster

It has been placed here in violation of

the Giuliani Administration's

"Quality of Life" campaign.

No posters or handbills of any kind may

be affixed to any light post or bus shelter

in New York City.

This ban covers all categories of notices

and advertisements:

- bands

- art spaces

- small businesses

- public lectures

- political rallies

Free speech is too untidy for Rudy's New York.

Of course, Mayor Rudolph Giuliani's "zero tolerence" approach to policing public spaces drew the ire of activists. For many, the underside of the "quality of life" campaign was increased police brutality, social control, and the "blandification" of urban space (Sites, 2003: 60). Recent histories of police violence in New York City devote considerable attention to Giuliani's aggressive policing approach (Johnson, 2003). The litany of complaints was not short, yet the mayor's pro-growth and social control model of urban governance was emulated across the country--most recently in Los Angeles--and even in Mexico City (Lipton, 2004). Rudy would have a high profile presence throughout the RNC.

From 11 to 72 Hours

Unlike many of the other RNC arrestees, I was in jail a relatively short amount of time--say 11 hours. As the week wore on arrest numbers mounted; many would be held for two or three days before they saw a judge. "Far too many New Yorkers were far too quiet," civil liberties advocate Norman Siegel proclaimed after fighting for the release of activists held for over 70 hours during the convention. "Our freedoms are not taken overnight, they disappear gradually." (These long wait times inspired New York Councilman Bill Perkins to introduce legislation to New York's City Council which would curtail these long sentences in May of 2005 (Lombardi, 2005; Murphy, 2005, also see http://www.nybordc.org).

By the end of the week of protests, some 1,800 individuals--activists and bystanders alike--had been arrested. While some suggested that the movement was loosing steam and the calls for direct action were less effective, others, such as myself, looked with wonder at both the well-targeted stunts of small groups of AIDS activists who received front-page coverage for their work all week and those involved in the big direct actions willing to sit down in the streets and say "No!"

"In the history of political conventions, there have never been so many people demonstrating opposition to their government," former Chicago Seven member and California state Senator Tom Hayden told demonstrators on September 1--even as many remained confined on Pier 57. Hayden elaborated that the 1968 generation never saw the kind of preemptive arrests, control culture, and repression which had become common features of recent protests such as the RNC or the demonstrations against the Free Trade Area of the Americas (FTAA) in Miami in November 2003 (Slackman and Cardwell, 2004). My arrest was one of countless strange stories of overreactions by the police.

August 27, 2004: The attack on Critical Mass

A helicopter pulsed overhead as nervous activists meandered around St. Mark's Church in the minutes after over several hundred bikers were arrested during for participating in a community bike ride on August 27, the Friday night preceding the RNC. Earlier in the evening, some 5,000 bikers had formed a cavalcade through the summer night. The ride was the culmination of a near-decade of bike and public space activism (Shepard and Moore, 2002). After years of theme-based Critical Mass bike rides supporting community gardens, nonpolluting transportation, even a commemoration of lost firemen after 9/11, the summers of 2003 and 2004 brought thousands of new members into New York's public space/environmental activism. Throughout the spring and summer of 2004, activists across the country recognized that the last Friday of August dovetailed with the RNC protests. Critical Mass rides took place around the world on the last Friday of every month. Anticipating the RNC, riders careened across the FDR freeway during the July 30 ride--the last ride of "the fun old days" of Critical Mass. By the next month, everything would be different.

By August, organizing efforts were met with government surveillance and attempts at total control of the monthly Critical Mass rides. During the last week of the month, police began making routine visits to the TIME'S UP! space (headquarters of the local bike activist group), where they asked about the whereabouts of a number of organizers who were on their radar. Surveillance, such as visits to the homes and workplace of activists known to be effective organizers, was common during the days before the RNC.

Two days before the August ride, organizers were informed that they could not hold their planned after-party at the Frying Pan, a regular venue for political parties and fundraisers, including many previous dance parties after Critical Mass rides. Apparently, the police, the Coast Guard, and others had flooded the Frying Pan owners with phone calls. Under heat from the federal government, the owners canceled the party. The Critical Mass rides and after-parties are events at which the roving activist social world converges on a monthly basis. Without opportunities to get together, these communities face the threat of oblivion. Once again, a community event was being attacked under the auspices of "zero tolerance" policing. That night, organizers distributed a flyer reading:

Important Message to Our Community.

Our beloved Critical Mass Ride is under attack!

All threats, intimidation tactics and harassment, however, will not keep us from going forward with this amazing community ritual! We have worked hard to build this dynamic community and to advocate for the rights of those that use alternative modes of transportation! We have worked hard to reclaim our rights to public space in our city of New York!

The message implored ride supporters to come out in force. It emphasized community interrelatedness, play, and pleasure as responses to the impending panic, and specifically called on riders not to cave in to a culture of fear and intimidation:

Tell all your friends. Bring family, neighbors, lovers and strangers. Bring noisemakers, musical instruments, face-paint, flowers, and your energy and joy. Bring things to juggle and to share and also your conviction that we have a right to converge and ride throughout this glorious city. Bring video cameras.

We will not be intimidated!

We will not be threatened and harassed!

This is our city! This is our community!

Let's make this the biggest, loudest, most joyful Critical Mass ever!

That Friday night, 5,000 riders--both locals and itinerant activists in town for the RNC--responded to the call. It was the largest Critical Mass ride in New York City history. Those who participated encountered the brand of demonization of protest and community building that had become a typical feature of the Patriot Act era. Over 250 riders were arrested that night; another 150 bicyclists were arrested by the time the RNC had ended, totaling over 400 bike arrests during the RNC alone.

"Police hate to be upstaged," one observer involved in radical gardening and biking noted. Both community gardening and bicycling had become targets of government crackdowns because they both seemed to advocate a vision of urban life in which care and connection with neighbors was prioritized over policing, security culture, and entrance fees. Both community gardening and biking challenged notions of the city as profit-making growth machine.

In the case of Critical Mass, the police appeared to be responding to the prefigurative "Yes"--the community-building process and the spontaneous ritual of community that unfolded the last Friday of every month. Activists had created an image of urban life built on affective play: bike riding amongst friends and neighbors in a healthy sustainable city. These rides functioned as open-ended, leaderless democratic free-for-alls--compelling spaces open for more and more bikers to participate. The police seemed upset that a group of citizens was not interested in asking for permission or asking them to play a role in helping organize their leaderless community. For many, the ride had become a sort of living example of noncommidified possibility. Thus, Critical Mass represented a powerful "Yes" to life, community, and authentic fun in a world of "Nos." While the police formed a security detail for the malling of Manhattan and the suburbanization of NewYork, Critical Mass rides represented a form of community building that had nothing to do with citizenship as shopping endeavor.

Tim Becker, who participated in many of the Critical Mass rides, including the August 27^th event commented on the feeling among riders that the police are acting like they are out for blood.  “I think they know they have this window in history when they can try to crush it.”  Much of the momentum for the attack on Critical Mass dates back to that ride.   “I guess its the payback for 3,000 people going to ride during the Republican National Convention,” Becker noted. “It was a sea of people.  I couldn’t even find anyone I knew.  I went on the ride.  It was like one of those Charlton Heston movies where he plays god and just wades out into the people.” 

September and October 2004: A Legal Fight Intensifies

"We are not blocking traffic. We are traffic" is the motto of Critical Mass. Cars make up traffic, and so do bikes. Few people expect car drivers to ask for permission to clog the streets. Bicyclists were claiming the same space for themselves.

The arrests preceding the RNC were only the beginning of a long legal fight between bikers and the police over the definition of a "procession." Police added a new element to the fight during the September 24 ride: cutting chains and confiscating 40 parked bicycles. In response, those whose bikes had been taken retained civil liberties attorney Norman Siegel, who had successfully fought Giuliani over similar First Amendment cases in the 1990s, and filed an injunction against the city. For many bikers, the debate about Critical Mass spoke to core constitutional rights, including the First Amendment right of the people "peaceably to assemble" and the Fifth Amendment right not to be "deprived of life liberty, or property, without due process of law." Cases involving the Fifth Amendment are routed to federal court. Thus, the riders filing for the loss of their bikes learned that U.S. District Judge William H. Pauley III would preside over their case.

In response to the bikers' lawsuit, the NYPD filed a counter injunction against Critical Mass, demanding that the leaderless ritual obtain a permit for the next communal bike ride. The police asserted that Critical Mass was a parade without a permit. Arriving just days before the next scheduled ride, the city's argument presented a number of questions and conundrums about the nature and definition of a procession. Was it possible for a community event without a leader or a sponsor to apply for a permit? If so, who would do the applying? Most important, how and in what way did the first, fifth, and fourteenth amendments to the U.S. Constitution apply to specific New York City traffic ordinances? (Karmazin, 2005).

On October 28, 2004, Judge Pauley ruled that the city had violated the bikers' right to due process by confiscating their bikes without charging the riders with a crime:

By attempting to use litigation as its platform, the city has injected a slew of important and complex issues into this action. With only two days to respond to the city's application, the Plaintiffs are prejudiced, and the Court is short-changed.

. . . Plaintiff's motion for preliminary injunction is granted in part, and the city's motion for preliminary injunction is denied. Specifically, the city and its police officers and agents are preliminarily enjoined from seizing bicycles used by participants in the October 29, 2004, Critical Mass bike ride unless said participants are provided with notice of the reasons for seizure or they are charged with a crime or violation of law (quoted in Karmazin, 2005).

With this victory in hand (see Moynihan, 2004), the Critical Mass ride went forward the last Friday of October. The Halloween ride is usually the most colorful of the year. Without a permit, police arrested 33 bikers that Friday, just days before the November 2 elections. Battered but determined, bikers and their friends danced the night away at an after-party held at the TIME'S UP! space on Houston Street. Outside, police circled the party, confiscated more bikes, and eventually raided the party.

November 2004: Buy Nothing Day in a Police State

The next month, the Critical Mass ride was scheduled to take place the day after Thanksgiving. Many activists know the day as International Buy Nothing Day. The Reverend Billy sponsored a series of pranks and zaps throughout the day. Throughout the summer, the Reverend had used the First Amendment like garlic to protect himself as he lead thousands in reciting the amendment at Ground Zero (the former site of the World Trade Center). It seems the police have a hard time arresting a group of people reciting, "Congress shall pass no law prohibitingthe right of people to peaceably assemble..." So the same talisman was employed on Buy Nothing Day.

But the charm did not work as well that day, and the good Reverend spent a night in the Tombs after his performance inside a Starbucks coffee shop. He would be joined by a group of 17 bikers later in the evening. After coming home from Reverend Billy's show, I grabbed Dodi and we went to wish the Critical Mass riders well. Union Square, where the bikers usually converge before the ride, was surrounded by police. "White shirts," the commanding officers, talked with detectives. They all tried to look important, shuffling their jackets with their hands in their pants in such as way as to show everyone that they had badges and guns.

Dodi wanted some French fries, so we ran into a fast food restaurant where several more police officers were also waiting in line. There must have been 25 Patrol Wagons surrounding the park. God knows much the show of force cost in police overtime pay. Dodi and I sat to talk and share fries with the riders. Gloom filled the dark night air. That night she learned the word "fuck"--an epithet repeated by many of the nervous riders after reading a flyer passed out by the police:

NOTICE TO BICYCLISTS

- THE NEW YORK CITY POLICE DEPARTMENT REQUIRES YOUR COOPERATION IN COMPLYING WITH THE LAW AND PROTECTING THE PUBLIC FROM HARM
-
- IT IS DANGEROUS AND ILLEGAL TO RIDE A BICYCLE IN A PROCESSION ON THE PUBLIC STREETS WITHIN NEW YORK CITY, IF A PERMIT FOR THE PROCESSION HAS NOT BEEN ISSUED BY THE NEW YORK CITY POLICE DEPARTMENT.
-
- NO PERMIT HAS BEEN ISSUED FOR THE A BICYCLE PROCESSION TONIGHT, NOVEMBER 26, 2004.
-
- IF YOU CHOOSE TO RIDE IN A PROCESSION THIS EVENING, YOU WILL BE ARRESTED AND YOUR BICYCLE WILL BE SEIZED.
-
- THANK YOU FOR YOUR COOPERATION.

Dodi and I wished everyone well, hoping they would not face a night at Central Booking. While the police had not identified which laws the bikers were ostensibly breaking, this did not stop them from presenting on ominous show of force and eventually arresting 17 of the riders. As Dodi and I left, we hoped to avoid police ire as we walked along the sidewalk to the subway entrance. Discussion on the Indy Media website that night involved images of a city that felt like a police state.

December 2004: Finally, a Win

As fall turned to winter, the police and the bikers continued to spar over the definition of a public procession. The struggle marked yet another in an ongoing series of skirmishes in what amounted to a class war over liberatory urbanism versus control of public space (Ferrell, 2001; Shepard, 2002).

The year ended on an up note. Judge Pauley threw out the city's counter injunction over Critical Mass, suggesting that the conflict would be best handled in state court. Pauley, who was careful not to appear to support the bikers, specifically noted that the city had tolerated and even supported the rides in years past. "After allowing Critical Mass rides in Manhattan for 10 years without permits," he explained, "the police department has acquiesced to the very conduct it now seeks to prohibit" (Bray vs. The City of New York: 20). Further, the judge highlighted the testimony by assistant Police Chief Bruce H. Smolka, Jr., who confessed that the NYPD "can enforce the laws without an injunction, but an injunction would be helpful."

Pauley rejected the city's push to require Critical Mass to apply for permits and wait for approval from the Parks Department before the rides. He noted that since there is no organizer for the event, the application for permits would not be possible for such an amoeba-like entity (Associated Press, 2004). Thus, the city's claim could not be sustained. "The City does not aver that it seized Plaintiff's bicycles on September 24, 2004 to redress violations of the special event permit requirement," Pauley wrote. "There is no logical connection between the claims, other than the fact that they both relate to the Plaintiff's status as Critical Mass riders. This is not sufficient" (Bray vs. The City of New York: 12).

Pauley specifically addressed the definition of permitted actions at the heart of the controversy. "[T]he applicability of the parade permit requirement has not been adequately delineated by any federal or state court decision," He wrote. Therefore, the judge concluded, "[t]he city's counterclaim presents novel questions of state or local law, which militate strongly against exercising supplemental jurisdiction" (Bray vs. The City of New York: 16). Pauley noted that the bikers were right to claim that they have the same rights to use the streets as cars do. Two bikes in a row is not a procession, it is traffic--exactly the argument Critical Massers have made for years. "We believe that the judge was legally correct, and hopefully the strength of his legal argument will deter the city from seeking to appeal," stated Siegel (quoted in Associated Press, 2004). But the city said that it would appeal the decision. For the bikers, the final ride of the year, on New Year's Eve, was a thrilling victory lap with no arrests.

March and April 2005: The City Responds- Muzzling Dissent

As the winter turned to spring, however, there were more arrests. In March 2005, the city responded with another effort to control the Critical Mass ride, filing a new lawsuit in state court. This time, their strategy resembled the attack on stickering discussed earlier in this essay. They sought to prohibit primary organizers with TIME'S UP! from speaking out about the ride, thus muzzling those speaking out against the city. The city's actions could set a precedent that would allow the police to set the terms for the number of people who assemble in a city park. If the city wins, the police would be allowed to disperse any gathering it wishes if 20 or more people are in attendance (Karmazin, 2005).

Once again, attorney Siegel responded to the charges presented by the city. "No court has said that it's unlawful to stand in Union Square Park without a permit," he explained. "If the City of New York succeeds here, it would have huge implications for social protest movements, not only in New York, but throughout America," Siegel continued. "For example, the idea that SCLC [the Southern Christian Leadership Conference, [and]Dr. [Martin Luther] King could not publicize and tell people to gather, to sit in at lunch counters, would have been unlawful at the time. People were challenging the idea of segregation. So the idea that you could not publicize the gathering to challenge unlawful laws is alien to what American history is all about and we will vigorously oppose that in the state court" (Siegel, 2005).

Eugene Karmazin, a Critical Mass supporter, wondered how long the NYPD could continue to battle with the citizens of the city they are charged to support. "To suggest that the maintenance of a political prerogative justifies the NYPD's recent behavior would be insufficient," he wrote. "A more plausible logic might say that once defied, police forces will move to reestablish their authority, often with crushing force" (Karmazin, 2005).

During the April ride, Bruce Smolka, an assistant police chief, confirm Karmazin's thesis. Times UP! organized rally called, Still We Speak rally, as a rickoff rally before the April 29th ride. After a parade of testimonials ­ from Rev. Billy, Norm Siegel, and others - on the importance of the First Amendment ­ Smolka's response was to personally and violently arrested a by standard at the pre ride rally. "You're riding your bicycle on the sidewalk," Smolka is said to have declared. "You're under arrest." The New York Times captured the searing image of the officer who had once presided over the Street Crimes Unit which who put 41 bullets in Amadou Diallo and later made the order to start arrests at the Carlyle Group in April 7, 2003 during an anti war protest (to be discussed later in the essay) (Fahin and Dwyer, 2005; Naparstek, 2005; Wasserman, 2005). From Diallo to the Carlyle Group to Critical Mass, the new 'zero tolerance' policing is a threat to human life, peaceable assembly and by extension, democracy itself. In the case of Critical Mass, after 10 years of relatively peaceful rides, the city's case against the rides speaks to a core questions about the use of public space, the fate of activism, and creative direct action in the era of the Patriot Act.

Preemptive Arrest, Control, and Demonization of Protest

If the stories of arrests for stickering or biking suggest anything, they merely confirm a point that has already become obvious. In the Patriot Act era, civil disobedience and activism face countless challenges. The powers-that-be had long sought to redefine protest groups that employ civil disobedience--such as Earth First! and Reclaim the Streets--as terrorists in previous years. Yet with the military/corporate/ entertainment/police/prison-industrial complex in high gear as immigrants were detained and war coverage entered a 24-hour news rotation, the job became that much easier after the attacks. This panic like atmosphere only aided the passage of the USA Patriot Act without much deliberation. And funding for the military, policing, and security structures increased exponentially.

The pattern was nothing new. In periods of social and economic crisis and flux, such as after 9/11, panic triggers shifts in how protests are defined:

from acceptance to surveillance

from tolerance to criminalization

from a liberal emphasis on equality toward a coercive emphasis on control.

In the era of the Patriot Act, panic has been used to justify encroachments on civil liberties not seen since the internment of Japanese-American citizens during WWII. This panic has vastly limited constitutionally protected democratic political participation, including the right to civil disobedience. If the Patriot Act is made permanent (as it appears it will be), the law may be remembered for restricting civil disobedience in much the same way as the Taft-Hartley Act of 1947 restricted labor activists.

Panic over Public Space--the Mods vs. the Rockers, Police vs. the Protestors

In the days after 9/11, panic over public space and the movement of those within it increased, and restrictions on the public commons grew. "Perhaps the most dangerous element of the Bush Administration's current campaign against democratic rights has been the deliberate manipulation of mass public hysteria," Columbia University professor Manning Marable (2003) explained, pointing out that 1.9 million new prescriptions for Zoloft, Prozac and other antidepressants were filled after the terrorist attack. "The American public has been bombarded daily by a series of media-orchestrated panic attacks, focusing on everything from the potential threat posed by crop-dusting attacks being used for "bio-terrorism," to anthrax-contaminated packages delivered through the U.S. postal service" (Manning 2003: 9). Thus, panic is used as a tool by the elite for the control and manipulation of public space and opinion. In most circumstances, these panics function as a vast distraction. "In service of the new militarism, all other concerns, including poverty and constitutional protections such as civil liberties and civil rights--indeed, the right to dissent from official policy--are not only subordinate to the advancing war machine but have become suspect on patriotic grounds," Arronowitz and Gautney contend (2002: xxx). Within this context of panic, the War on Terror has replaced the Cold War as America's latest permanent threat.

As noted above, this process is not new. Panics, red scares, and public hysteria have long been part of American political discourse. "What happens when our pragmatic, commonsense, split-the-difference American politics turns righteous?" political scientist James Morone asked in his recent book, Hellfire Nation (2003: x). The answer is simple: checks and balances become little more than nuisances, and hysteria is used to manipulate public opinion. Compromise disappears; in its place, lynchings, witch-hunts, "get-tough" laws, and race riots follow. Protestors become "terrorists." Labels, demonology, and zero-sum arguments win the day as political players are divided between "us" and "them," and panic takes precedence over reasoned discourse. The process follows a familiar schema. In times of social flux, interest groups: 1) stir up a moral frenzy, 2) identify a demon, 3) mobilize interests, and 4) increase police powers (Morone, 2003). These "panics," which can be traced to the country's earliest days, "tap into deep-seated fears of socially dispossessed elements, such as youth, racial and ethnic minorities, and the sexually ostracized" (Shevory, 2004: xv).

In the Patriot Act era, protesters fit into a panic structure outlined by sociologist Stuart Cohen (1972). For Cohen, this collective behavior involves a distinct sequence of events that make up a panic script. A dramatic event is followed by a public outcry, "moral entrepreneurship," and the mobilization of control culture (1972: xxiv). In studying the responses to the appearance of the Mods and the Rockers, two highly stylized British youth groups that ran free on beach boardwalks during bank weekends from 1964 to 1966, Cohen recognizes that much of the anxiety surrounding the groups arose in anticipation of a potentially disastrous situation. People feared the shifting social mores, sexual licentiousness, and potential for property destruction that accompanied the youths' comings and goings. For the Mods and the Rockers, the result of the panic was a new set of control mechanisms to curtail their movements. Contention over use of public space often triggers such a response.

In the years after the 1999 protests in Seattle surrounding a meeting of the World Trade Organization (WTO), a similar type of collective anxiety came to accompany the expected appearance of so-called "violent anarchists" at convergence actions. This anxiety generated a similar level of public outcry. Moral entrepreneurs--such as police, the media, and public officials--demonized anarchists as "terrorists" in order to justifying surveillance and the mobilization of control culture.

A November 5, 2004, editorial in a New York City tabloid promoted the image of Critical Mass bikers as "hooligans," providing a rationale for stepped-up surveillance (Storozynski, 2004). Such demonization, of course, justifies preemptive arrests of activists and others unlucky enough to be caught in the crossfire. Likewise, on May Day 2000, the NYPD preemptively arrested a group of anarchists wearing black bandanas standing in Union Square even before the day's march began. Kauffman (2000) described the scene. "All around Union Square, the starting point for the march, the police amassed, literally by the thousands. Rows upon rows of cops in riot gear stood in military formation everywhere you looked. Some were carrying the suddenly ubiquitous canisters of pepper spray and tear gas; most had big bundles of plastic handcuffs hanging from their belts, as a none-too-subtle threat." For Kauffman, "This obscenely excessive show of force was intimidating." Yet, it had its effect ­ to demonize those involved in protest. The chosen panic scapegoat becomes a "folk devil" onto whom cultural anxieties may be projected. In Cohen's study, the folk devils were youth subcultures. After Seattle, the folk devil became anarchist protestors who inspired widespread negative reaction (Cohen, 1972,15-17). In the days following the 9/11 terrorist attacks, the demonization and surveillance of those who were thought to represent a potential threat to public order became that much easier to justify.

In the days before the August 2004 RNC in New York City, a similar type of hysteria accompanied the expected protests surrounding the convention. "Anarchists Hot for Mayhem," read a New York Daily News headline in August (see O'SHAUGHNESSY, 2004). The article reported that "50 of the country's leading anarchists" and their followers planned to converge in town for the convention protests. A similar story from the New York Post announced, "Finest Prep for Anarchy," (see New York Post, 2004). This story included descriptions of "high-profile, radical" activists. Immediately before the protests, ABC's "Nightline" and FOX News displayed photos of a number of activists-some of whom had already been mentioned in the Daily News story. The Nightline piece used the words of the police to describe activists organizing against the RNC as "troublesome, even dangerous, anarchists who infiltrate other groups of demonstrators and then try to provoke violence" (Anderson, 2004). Here, the police and the media functioned as moral entrepreneurs to mobilize sentiment against the protestors, to demonize them, and to justify surveillance of their activities (see Lichtblau, 2004).

The New York City Police Department Legal Guidelines for the Republican National Convention specifically listed “Swarming/Critical Mass,” “Marching Bands” and “Projectile Launches” as threats to prepare for within their ‘Operation Overlord II’ to control the protests (Doefner and Sweet, 2004, 13, 17).  The threat of Projective Launches listed the following threats, “Rocks, paving stones, bottles, batteries, ball-bearings, nuts and bolts, billiard and golf balls, hockey pucks, nail filled potatoes and other objects are used as projectiles, primarily targeting law enforcement officers,” (17). Police were warned that, “Objects are stored on the protestor’s person, in pockets or backpacks, or can be concealed in the vicinity of the protest site,” (17).  In addition, police were informed that, “Frozen water balloons have been dropped from a three-story building onto a moving police vehicle,” (17).  Further, “Lacking supplies, protestors have resorted to the use of paving stones, bricks, mailboxes and road debris.  Protesters may utilize devices such as wrist rockets, slingshots, large rubber bands, paint ball guns, lacrosse sticks to launch projectiles,” (p.17).  Having done their homework, the police included a warning about an incident which occurred at the Quebec protests in 2001. “Catapults have been constructed to hurl objects, such as stuffed animals, bricks and bottles over security lines and at police officers,” (17).  The police spent millions to protect the city from flying teddy bears?

John Jordan (2003), who helped found CIRCA, actually recalls the event explains,

Witnessing a large medieval catapult firing teddy bears and soft toys over the fence erected around the summit of the Free Trade of the Americas in Quebec. Pulling the fence down and dancing on its back as bends and buckles. Seeing the clouds of tear gas rise above the city, fired at the rate of one minute for 3 days and nights, laughing as someone expertly hits the gas canisters back towards the police with an ice hockey stick. 

The point of the teddy bear launch was to bring some theatre and color and art as into the discourse.  “It felt real to me. More absurd, more adventurous and often more 

dramatic than any theatre,” Jordan explained.  But the police did not seem to appreciate the playful aesthetics of the flying teddy bears.  Instead, they panicked. 

"Protest panic" is just the latest in a long series of red scares and similar forms of public hysteria, which occasionally bubble up from the primordial fear that too often grips the American psyche. These panics tend to follow a simple pattern. Interest groups stir up a frenzy using the media, identify protestors as violent and a threat to the larger good, and mobilize political opposition to all but the most staid and controlled forms of ceremonial protest, while increasing surveillance of dissent and justifying total control of those thought to pose a threat to the common good (see Graeber, 2004).

Breaking Through the Panic--an Anti War Movement Grows

Yet despite the mobilization of public panic and the resulting increase in repression, activist opposition remained strong. In the years after 9/11, activists have struggled against the ideological uses of the Patriot Act and its restrictions on movement in public space. But they often faced formidable obstacles. UFPJ fruitlessly fought for a permit for an antiwar march in New York City on February 15, 2003, only to see its case dismissed as a security threat. Within the context of the War on Terror, the competing narratives of this struggle involve activists being labeled as terrorists and debates over democracy versus state control. In December 2001, Attorney General John Ashcroft claimed that those who opposed his draconian approach to challenging terrorism "only aid terrorists." It was yet another example of a panic script used to justify encroachments into the public sphere.

As the antiwar movement grew, barriers to protest only increased. Activists faced a barrage of threats from the NYPD (Gootman, 2003; Lee, 2003; NYACLU, 2003). Yet this did not stop them from continuing to use civil disobedience to oppose the war. In the days following the February 15 antiwar action--which went forward despite lacking a permit--activists succeeded in blocking city streets in front of Rockefeller Center with an ACT UP-style "die-in" on March 27, 2003 (Associated Press, 2003; Yaniv and Ortega, 2003).

Throughout the days preceding the start of the Iraq War, the use of pre- emptive arrests against activists increased. On April 7, two weeks after the striking March 27 action, police preemptively arrested activists involved in a similar protest against the Carlyle Group, a defense-related investment firm with financial ties to the Bush and Bin Laden families. Over 70 protesters were illegally arrested outside the offices of a Carlyle Group affiliate (Dewan, 2003). Throughout the day, activists charged that they were interrogated about their political beliefs using demonstration debriefing forms, which was later ruled unconstitutional (Rashbaum, 2003a,b). That same day on the West Coast, police used crowd-control methods including wooden and rubber bullets, injuring activists from Direct Action to Stop the War protesting against shipping companies involved in the war effort at the Oakland docks (Murphy, 2003; Solnit, 2004).

In the history of civil disobedience, the use of preemptive arrests of activists who police suspect will employ civil disobedience is a new threat. Many activists over the years have been brutalized during and after protests. But the notion of surveillance and pre-demonstration arrests of activists who police suspect might engage in disorderly conduct even before they have done anything radically alters the playing field. Eric Laursen, whose photo was featured in the ABC story about anarchists planning the RNC protests, explained, "I had not been charged with any crime at the time those photos were shown...I haven't since. [Showing those photos] inferred we incited violence. That's out-and-out character assassination" (Anderson, 2004).

Larson was not the only organizer identified who suffered personal and professional repercussions during or after the RNC protests. Take David Graeber, an anthropologist at Yale University who worked along with Larson and myself and a number of others organize the A31, 2004 direct action events. Graeber was dismissed from his position at Yale the following academic year (see Frank, 2005). His explanation of his situation elaborates on the use of panic to isolate and demonize organizers: "If I had to get analytical about it, maybe I'd put it this way... It used to be as long as you didn't challenge the corporatization of the university, you'd be basically okay. But the neoliberal project - where the politicians would all prattle about "free markets and democracy" and what that would actually mean was that the world would be run by a bunch of unelected trade bureaucrats in the interests of Citibank and Monsanto - that kind of fell apart. And of course the groups I've been working with - People's Global Action, the DANs and ACCs and the like - we had a lot to do with that. It threw the global elites into a panic, and of course the normal reaction of global elites when thrown into a panic is to go and start a war. It doesn't really matter who the war's against. The point is once you've got a war, the rules start changing, all sorts of things you'd never be able to get away with otherwise become possible, whether in Haiti or New Haven. In that kind of climate, nasty people start trying to see what they can get away with. "Fire the anarchist for no particular reason? Maybe that'll work," (quoted in Frank, 2005).

And certainly the rules were changing. The precedent of activists being demonized, detained, and isolated before protests even begin has been adopted across the country. This model was first really seen during protests against the International Monetary Fund (IMF) in 2000 and 2002 (Blummer, 2005). It came of age with the FTAA protests in Miami in the fall of 2003.

The Miami Model

In November 2003, labor, AIDS, and global justice activists converged to oppose the meetings in Miami, Florida, of trade ministers from 34 countries who gathered to negotiate the Free Trade Area of the Americas (FTAA). To the protestors, the FTAA appeared to be another trade deal that could weaken the hand of labor, hurt the environment, and weaken public services including health care and education, while curtailing the rights of indigenous people across the Americas. In response to their grievances, the thousands of activists who gathered in Miami to protest against the FTAA were met with a phalanx of some 2,500 riot cops from 40 law enforcement agencies, coordinated by the U.S. Department of Homeland Security. Protesters were doused with pepper spray, shot with rubber bullets, hit with batons, and shocked with electric tasers and shields. "They can beat the rap, but they can't beat the ride," a Miami police officer explained.

For activist Beka Economopolis, who was at the protest with UFPJ, the police response "sums up the emergent strategy in this country for dealing with dissent. It involves a pattern of high-profile clashes in the streets, bogus arrests, trumped up charges, excessive bails, and subsequent civil suits and dismissals in courts." The implication was simple: activists would be arrested on trumped up charges and removed from the streets--regardless of whether they were innocent or not. Economopolis was certain that the illegal arrests and bogus charges could be easily beaten. She was not, however, convinced that these police practices did not discourage others from participating. "This chilling effect remains: civil liberties are trampled, lives are disrupted, and a deterrent is delivered." This aggressive policing approach has come to be known as the Miami Model of protest control. The Miami episode cast an ominous shadow on the RNC protests planned for the following summer.

Setting the Stage for the RNC

In order to set the terms for the RNC protests, in the summer of 2004 civil rights attorneys from the Center for Constitutional Rights (CCR), a nonprofit legal organization based in New York, filed a multi-plaintiff federal lawsuit on behalf of protesters who were illegally arrested during the Carlyle Group antiwar rally on April 7. The suit charged that the NYPD unlawfully arrested peaceful protesters and detained them for excessively long periods of time at One Police Plaza.

"The Carlyle arrests are part of a pattern of NYPD harassment in which lawful demonstrators are arrested and jailed with the short-term goal of clearing them off
the streets and the long-term goal of deterring them and other New Yorkers
from participating in future demonstrations," said CCR's Nancy Chang. Plaintiffs' lawyers, CCR, and the law firm of Emery, Cuti, Brinckerhoff, and Abady hoped this lawsuit would help to break the pattern of intimidation as activists prepared to protest the RNC.

The charges against all the plaintiffs were dismissed. One plaintiff, Sarah Kunstler, was held for 12 hours and charged with two counts of disorderly conduct. "It was frightening to learn how easy it is to be arrested without warning and hauled away for peacefully exercising your free speech rights," she said. Aside from unspecified monetary compensation, lawyers sought a declaration from the court that the NYPD's actions on April 7 were retaliatory and unconstitutional. Later, some 90 percent of the charges against activists were dropped once the RNC protests were over, as police were often unable to substantiate their claims. In many cases, the police were found to have lied, omitted information, and misrepresented evidence (Dwyer, 2005)., Currently, the New York District Attorney's office is being investigated for supporting numerous unsubstantiated claims against U.S. citizens.

The Future of Creative Protest

In this year after the RNC protests, the need for creative protest, art and other expressions of joy has remained an imperative ­ especially as activists seek to articulate visions of the world they hope to create rather than one they merely oppose. Like any form of direct action, such practices still face countless threats today. In this era of the Patriot Act era, such forms of playful, unthreatening, yet still subversive engagement become more tactically useful for political messaging and fun for political actors and bystanders alike. When these actions are linked to tangible goals, well-targeted creative direct action are still useful as a tactic and a way of being in the world.

The point remains that activists must continue to reinvent their approaches toward organizing for social change. "We need to think creatively in order to combat these tactics that have been repeated over and over at mass demos in the past few years," explained Kris Hermes, who demonstrated against the RNC on the floor of Madison Square Garden with 10 other members of ACT UP during the RNC protests. "At nearly every one you see indiscriminate mass arrests-media, legal observers, people providing medical assistanceround 'em up. They send a message that it's not OK to protest on our streets. A fiercer offensive attack against those types of [police] tactics is what I think needs to happen. How you do that legally is where we need to go back to the drawing board." Like many, Hermes suggested that activists would be well advised to work toward spontaneous disruption rather than permitted protests and large convergence gatherings.

Terra Lawson-Remer of Operation Sybil, another RNC direction action group, agrees with the call for new approaches to creative protest. Along with a small affinity group, she rappelled from the roof of the Plaza Hotel on August 26 and dropped a banner reading "TRUTH" with an arrow pointing in one direction and "BUSH" with a second arrow pointing in the other, similar to the "WTO"/"DEMOCRACY" opposing arrows banner witnessed during the Seattle WTO protests in 1999. "It was a personal risk, including the very real risk of getting arrested," Lawson-Remer reflected after she was released from jail. "It demonstrated that we were serious, that we cared enough about this that we were willing to risk our futures" (Kamenetz, 2004).

As for the transformative possibilities for direct action in the liberatory zones beyond the protest pens hoped for during the RNC protests, their vitality as temporary autonomous zones remains tenuous as surveillance and preemptive arrests slow the work of activists. Just months after the RNC protests, a group of activists filed suit against the City of New York on behalf of those arrested, charging that the department had sought to punish them for their political views. "During the Republican Convention, the mayor and the Police Department suspended the Bill of Rights for those who chose to protest the foreign, military, and domestic policies of the United States government. The rights to free expression, to be free from arrest lacking probable cause, to a prompt arraignment and release, and to be free from conditions of confinement that were inhumane were arrogantly trod upon by [Mayor Michael] Bloomberg and [Police Chief] Kelly, and others," explained Jonathan Moore, one of the lead attorneys representing the protesters. "These actions by the NYPD speak to an overall policy, put in place by the top leadership of the department, to chill and punish political protest. It is an outrage," said another lawyer on the case, Martin Stolar, president of the New York City Chapter of the National Lawyers Guild.

The city was later forced to settle the lawsuit. Already, a backlash against this form of preemptive arrest is emerging. For example, the Washington, D.C., City Council recently passed the "First Amendment Rights and Police Standards Act," which specifically aims to curtail the demonization of dissent. If free speech is to survive, other municipalities will need to push to outlaw preemptive detention (Blumner, 2005). The New York City Council is already considering a similar piece of legislation.

Breakthroughs in 2006

By 2006, legal and political tools used against the  demonization of dissent started bearing fruit.  Video activists had been documenting police attacks of friendly community activity, including biking. And their work drew the attention of the New York Times, which documented the aggressive and dangerous approach the police were taking to chasing down and arresting those participating in the Critical Mass (Dwyer, 2006b). One videographer actually filmed the Smolka of the NYPD forcibly pulling Adrienne Wheeler off her bike without warning during a Critical Mass ride.  And CBS aired the video  (Young, 2006).  Throughout the summer and fall, Times UP New York members continued to work with members of New York’s CIRCA to bring the light edge of radical clowning aimed at defusing pressure situations to their actions (Ferguson, 2006).   The clowns brought a little lightness and festivity, helping the group whether what felt like a tough period.  Good news was, afterall, around the corner.  By February 2006, a judge ruled against the city’s injunction against Critical Mass NYC (Dwyer 2006a; Stallman, 2006).   And the judge clearly brief in the ride’s favor.  Judge Stallman (2006) rejected all of the city’s arguments.  Most importantly, he declared that there was absolutely no legal ground for the city to consider a group of bike riders a protest in a need of a permit, thereby affirming the argument made by bicycle activists that rather than diverting traffic, ‘We Are Traffic.’  To ask the riders for a permit would be tantamount to asking car drivers to get a permit to ride across the Brooklyn Bridge every day.  While the city is appealing and the fight continues, it appears the unpermitted authentic community ritual withstood the city’s assault.  This victory bodes well for many forms of community building direct action. 

In the End

Narratives linking protesters with terrorists and dissent with lack of patriotism seem to accompany a new form of thought control. As capital intersects with state power, the system appears more than capable of absorbing disruptions. Nevertheless, protest remains imperative. And when done effectively--with disciplined research, a clear target, and a well-communicated, winning strategy--it still remains effective. In the age of terror, the capacity of civil disobedience to disrupt the everyday mechanisms of power appears vastly restricted. For this reason, prefigurative, joyful, community-building protest is more essential than ever. If anything, we need this to live, feel pleasure, and carry forward. In the tragicomic theater of contemporary urban life, we need as many playful responses as we can create. Between street parties and bike rides and playgrounds, advocacy and personal fun, the possibilities of public space and by extension democracy itself remain both paradoxical and compelling as ever.

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