As Free As We Want To Be?
Fair Is FAIR
By Angie Drobnic
July 8, 1997: There have been several incidents of people claiming that their free speech has been inhibited here in Albuquerque in the past year. While the rights may seem trivial--a politician wants to hand out fliers at the State Fair, homeless people want to sell their newspaper on the streets--the underlying causes of their problems are disturbing. In our annual Freedom Issue, Weekly Alibi once again looks at the price and responsibility of living in a truly free society.
Abraham Gutmann went to the New Mexico State Fair one fine day last September and ended up getting himself arrested. His crime: approaching fairgoers, shaking their hands and giving them a pamphlet to take home. Gutmann was then running as the Green candidate against popular incumbent Sen. Pete Domenici; no one thought he would win, and he did not. During the campaign, though, Gutmann had been playing what he calls a "cat and mouse game" for months trying to talk to voters at malls and post offices. A lot of places kicked him right out, because the law says they can. Even the State Fair--a taxpayer funded government institution--mandated that political groups pay for a booth space and stay in them. But Gutmann didn't have the $500 minimum that it would cost. "I decided to go campaign there and let whatever happen that would," said Gutmann later. He was arrested. The Metro Court judge, Thomas Mescal, threw out the charges on first amendment grounds.
Cynics said at the time that Gutmann's arrest was a publicity stunt, which he denies: "I certainly can't say that it helped me. ... A lot of other people probably were very turned off by it, thinking, 'That guy's a kook.'" That cynicism, he says, is becoming more a part of the modern political campaign, and Gutmann is passionate when he speaks of it. As an experienced member of the Green Party, Gutmann says: "When we call people and ask them to vote, they often react like it's a telemarketer calling them. ... People associate it with that because the only form that they receive information about politics is usually from paid TV commercials. Political commercials look so much like product commercials. ... We're not trying to sell them something, we're trying to give them more information about a decision that is part of their responsibility of citizenship."
Gutmann's attorney, John Boyd, specializes in free speech issues. "The feeling that I get about this, that's probably the most demoralizing of all," says Boyd, "is that it's OK for them to cut these forums off because people don't really want to be bothered with this stuff. The fair's attitude is that people who go to the fair don't want to have some politician come up to them and hassle them about this or that or the other thing. The people just don't like it: They don't like politicians, they don't like the political process, they don't want to have anything to do with it, they don't vote and they don't care." In Gutmann's case, the issue didn't seem to be that the ideas he wanted to express were considered "dangerous" in any sense of the word; but rather, that the public was deemed to have reached a consensus against engaging in face-to-face discussions of issues that even might make them feel uncomfortable.
And an altogether separate consensus is that it didn't always used to be this way. In an affidavit for Gutmann's case, former-Governor Toney Anaya discussed campaigning at the State Fair since 1974, in a race for the office of Attorney General, and the importance it has for grassroots statewide candidacies: "The State Fair was well known to be a key venue for campaigning and was used by many candidates." Private facilities like malls used to be open to political discussion as well. In reviewing the history of free speech, John Boyd says, "When the Supreme Court had more of a liberal bent, the Warren Court decided that the shopping malls were really the equivalent of the old marketplace. ... On that basis, the Warren Court said that if you're going to have a shopping center that's open to the public, then that carries with it the responsibility to really open it to the public and make it be a place where exchange and free communication could take place." Those types of decisions have since been curtailed by more conservative rulings.
The Street News office is located on south Second Street, and I have to circle the block twice to find it. Inside a tiny half of a building, behind a counter and in a seemingly windowless room, sits Karen O'Toole, editor. There are papers stacked everywhere with headlines, like, "How the State Takes Your Vehicle!," "Too Inhuman for U.S., Death Ray Given to Israel!," "Plans Completed: Biological Warfare on Us!" and "Don't Give Away Your Property!" Street News' masthead describes itself as "New Mexico's Leading Paper for the Advocacy of the Homeless and At-Risk." And the homeless themselves sell it for 75 cents a copy. The intent is to help them support themselves by selling the paper and not asking for a simple handout. Containing a hodge podge of information about community services, government conspiracies and health care, at first glance it seems a fairly harmless publication containing ideas just outside the mainstream.
But O'Toole says her vendors are a constant target of the police. John Walker, head of the public defender's Metro Court misdemeanor unit, agrees, saying, "There is a disturbing number of incidents where a small but persistent group of uniformed patrol officers basically have this war going both with homeless people in general and Street News folks in particular." Albuquerque police are citing Street News vendors for traffic violations, most often ordinance 18.104.22.168, which states: "It is unlawful for any person to stand on a street, highway or controlled access roadway" in order to solicit rides or business. The intent of the law is to protect the safety of the public from streets turning into open markets, not necessarily to curtail business. Because the city will sell any vendor--including a Street News vendor--a permit to solicit on public sidewalks from 9 a.m. to 9 p.m., so long as pedestrians have space to walk around them. It's the thin line between the sidewalks and the streets where problems contend.
In one front page story, the Street News contends that, "Miss D.F., Vendor of Street News, was arrested with her permit, May 15th (1997) for being on a median with two Street News papers in her hand. She was crossing the street at that time, because she was now going to the bus stop after her day's work." In effect, the unaccredited story implies that the cops waited for her to cross the street to nab her, since they couldn't when she was merely on the sidewalk. According to Metro Court records obtained by Weekly Alibi, a woman with the initials D.F. has been ticketed or arrested at least 11 times in the past six months, mostly by one patrolman. O'Toole confirmed the records are those of Miss D.F., and she calls it a "persecution."
Several lawyers familiar with the Street News cases have said that there are at least a couple of vendors who could sue the city on a first amendment related charge and probably win. The problem is that because most of the vendors are homeless, they tend to live complicated lives. O'Toole says "Miss D.F." might have an excellent case against the city, but O'Toole thinks she has left town. Many of the vendors just want to be left alone.
As I sit in her office, a Street News vendor comes in and asks, "Where can I go?" The cops had chased him off his area; he says he was on a Downtown sidewalk and following all the rules. He says he told them he has a permit, which is pinned to his shirt. He shows me the receipt he has for the $5 permit; it's dated June 13 of this year. He tells O'Toole and me, before he even knows that I'm a reporter--and I dropped into their office unannounced--that the cops say his permit is overridden by ordinance 22.214.171.124. He wrote it down because he didn't know what it meant. He doesn't care about fighting them, he just wants to sell the paper in peace. He and O'Toole discuss other areas where the police are, deciding against an area that's near a police substation.
O'Toole admits that her vendors may not always be on their best behavior, and some don't have the city permits to sell the papers on public sidewalks. But many of them do. Since the beginning of this year, she says that police have ticketed or arrested Street News vendors who did have permits and were breaking no laws about 20 times. Because the vendors are poor, because they may not be very pretty, because people don't like looking at them. It usually comes down to the word of a homeless person against a police officer.
A Tangled WEB
The World Wide Web is where most agree the newest frontier of free speech is being pioneered. Anything goes. The City Government of Albuquerque has a Web site, as do Gatorade, pornographers, high school students, the Vatican and Weekly Alibi. Congress last year passed a law that so overdid it on regulating speech on the Internet, there was really not much of a question that the Supreme Court would overturn it, as indeed they did last week. In legal terms, Congress tried to ban indecent speech when it passed the Communications Decency Act, part of the omnibus Telecommunications Act of 1996. Let the lawyers haggle over definitions. Suffice to say that part of the "obscene" definition is something without any artistic, social or political relevance whatsoever; "indecent" is more broad, bordering on the ever subjective "offensive." It remains to be seen if Congress will try again to tailor a law that can pass Supreme Court scrutiny, though there has been much talk that they will try.
"The Internet has really brought the global village into existence, and the geographic borders don't mean the same thing as they do in the real world," says Mark Costlow, co-owner of Southwest Cyberport, a local Internet service provider. "People are going to have different ideas of what's acceptable, but the Internet just destroys the idea of the geographic community." A person can easily send a message from anywhere to anywhere, and restrictions tend to impact the seeker more than the speaker. No one may care if a group called Stop Prison Rape gets censored. But the people who might access such a site--those who are at risk for being raped in prison--may suffer from the lack of information without even knowing it.
The government stipulated in the case the Supreme Court decided, called ACLU vs. Reno, that sites put up by the likes of Stop Prison Rape, Planned Parenthood, Human Rights Watch and Youth Art Online would all have been subject to prosecution under the Communications Decency Act. The intent of the CDA was to protect children from indecent material on the Web, particularly pornography. But Supreme Court precedent says that the adult population cannot be reduced to viewing or hearing what is appropriate for children, the sticking point for the majority in the 7-2 opinion.
Supreme Court decision or no, parents will continue to find ways to keep inappropriate material from children. Because of the technology of computers, many companies have taken a stab at creating programs that block Web sites that are inappropriate to children, usually relying on key words to determine whether to block or not to block. Some interesting problems have arisen, particularly among private online services that are trying to make the ma- jority of their area family friendly.
Mark Costlow cites the example of America OnLine, for instance, which screened for the word "breast" in its groups and chat rooms. The target it busted most often: the breast cancer support group. An exception was eventually made. "It's hard to programatically weed out those things that are going to be offensive. ... It's an example of how computers can't see the context that words like that are used in," says Costlow.
But on the whole, the screening devices work well enough to keep children away from pornography, even if they make keep children away from much more as well. Egghead, a local software company, sells a program called Nanny, about which the store manager says he has never received any complaints.
The Clinton administration, which has vigorously defended the act, may be backing off as well from onerous Internet regulations. An article from the New York Times News Service stated several weeks ago that the administration has drafted a policy that will advocate the Internet be self-policing and perhaps an admission that the Internet is fundamentally different from television and radio. (The nature of the Internet is that users must actively seek information; content is not thrown at you when you turn your computer on.) So why did the Clinton administration support the bill in the first place? It's tempting to conclude: crass political posturing.
Comfort at Freedom's EXPENSE
Abraham Gutmann is currently seeking an injunction against the State Fair to end their "no campaigning" rule for all candidates. "People complain that we have no sense of community, yet it's being undermined all the time," says Gutmann. And there are few clear-cut villains: Many people don't want to be bothered by politicians or have to look at a dirty homeless person or worry that their kids are downloading nasty pictures off the Web. But the small sense of comfort the public gets is hardly a reason to begin nibbling at the first amendment. Perhaps it's because the standard of free speech is so much a part of the country that it becomes taken for granted. In some ways it should be celebrated that we perceive our freedom to be so entrenched, so unassailable. But in other ways, it means we take our freedom for such a given that we become blind to instances when it is being infringed.
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