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On October 24, 2002, President George W. Bush visited Columbia, South Carolina. (1) Brett Bursey, a fifty-six-year-old and long time peace activist, came to see the President that day, and took a spot at an intersection near the Columbia Metropolitan Airport with a sign that read "No War for Oil." (2) Bursey claimed that he was surrounded by others who were also waiting for the President to arrive--both supporters and protestors. (3) Bursey freely admits that he was not in the designated "free speech zone" approximately three-quarters of a mile away from where the President would be arriving. (4)
Bursey claims he was not looking for confrontation, and when the Secret Service asked Bursey to move from his spot, he obeyed. (5) However, when Bursey refused to disappear completely, local law enforcement officers arrested him and charged him with violating a local trespassing ordinance. (6) South Carolina authorities quickly dropped this charge because Bursey stood on public ground. (7) But Bursey's footing on public ground did not save him from federal charges. (8) In December 2002, Assistant United States Attorney Strom Thurmond, Jr. presented Bursey with a federal bill of information alleging that Bursey violated Title 18 [section] 1752(a)(1)(ii) of the U.S. Code. (9) Congress passed this rarely cited portion of the U.S. Code during the late 1960s to protect high public officials from assassination attempts. (10) This statute gives the Secret Service the authority to create restricted access zones preceding presidential visits, such as the zone Bursey allegedly violated on the day of the President's October 2002 visit to Columbia. (11) A United States magistrate convicted Bursey of violating [section] 1752 in January of 2003, fining him $500. (12) The U.S. District Court for the District of South Carolina (Columbia) affirmed the conviction, and Bursey is now considering appealing to the Fourth Circuit Court of Appeals. (13)
Bursey's case is not an isolated incident--other protesters have also been arrested for violating secured zones on presidential visits and other national political events. (14) Though federal prosecutors drop most charges in such cases, there are numerous examples of the Secret Service prohibiting peaceful protesters from protesting in nominally "restricted" areas. (15) For example, Secret Service officers arrested an American soldier's mother who donned an anti-war t-shirt at a New Jersey speech by First Lady Laura Bush. (16) Similarly, in West Virginia, the Secret Service detained a married couple for wearing anti-Bush shirts at a 2004 Independence Day presidential rally. (17)
How can the government balance the need to respect and protect free speech with its compelling interest of providing security at presidential visits and other such events? In considering that question, this Note examines the constitutionality of the application of [section] 1752 under the public forum doctrine. Under the public forum doctrine, public spaces such as streets and parks have "immemorially" been used for "discussing public questions," and the public enjoys a general right of access to these areas. (18) When streets and parks are completely shut down for presidential security, they are no longer public forums due to the security measures that must be taken to protect the President. (19) Therefore, in theory, the public temporarily cedes its general right of access to these areas in the interest of presidential security. (20)
This Note argues that the "restricted" area created by the Secret Service during the President's 2002 visit to Columbia, South Carolina was a "designated public forum." As a designated public forum, speech restrictions within the restricted area should have been content neutral, unless justified by strict scrutiny analysis. Furthermore, time, manner, and place restrictions imposed on the public's speech in this case should have been subjected to intermediate scrutiny review. This Note argues that the Secret Service's recent application of [section] 1752 to Bursey was unconstitutional because, although the text of the statute is content neutral and thus could be applied as a valid time, manner, and place restriction in a public forum, in Bursey's case the statute was (1) arbitrarily enforced, (2) applied in a viewpoint-discriminatory manner, and (3) left no adequate alternatives open for Bursey to convey his message. Furthermore, even if the restricted area in Bursey's case was deemed a nonpublic forum, the application of [section] 1752 was still unconstitutional because law enforcement applied the law in a viewpoint-discriminatory manner and in a manner unrelated to the legitimate purpose of providing security at a presidential visit.
In examining the constitutionality of [section] 1752, Part II discusses the origin of the statute and its use at presidential visits. Part III provides an overview of the public forum doctrine. Part IV analyzes the use of [section] 1752 in Bursey in terms of a designated public forum; and Part V applies a nonpublic forum analysis to Bursey. In conclusion, this Note argues that future applications of [section] 1752 should be carefully considered in light of public forum analysis to prevent infringement upon constitutionally-protected speech.
II. PRESIDENTIAL SECURITY AND THE ORIGIN OF [section] 1752
A prime opportunity for Americans to show their support for, or their opposition to, the government is the presidential visit. (21) Presidential visits draw out thousands of people for an historic event: the President of the United States speaking close to home. (22) The visit of a President is a chance for every citizen to be personally heard by the nation's most powerful leader.
Presidential visits, however, involve considerable risks to the President's security. (23) History has shown that the President is most vulnerable to assassination attempts when he attends highly-publicized local events. (24) To minimize risks of physical harm to the President, the Secret Service, the federal agency responsible for protecting the commander in chief, secures the site the President will be visiting, plans for emergencies, and acts as the President's bodyguard. (25)
The United States Code provides for the security of the President as well. (26) In the wake of the political assassinations of the 1960s, Congress passed into law a bill that made it a federal offense to "willfully and knowingly ... enter or remain" in an area where the President is or will be visiting, which the Secret Service or other authority has "posted, cordoned off, or otherwise restricted." (27)
A. The Legislative History of [section] 1752
To see fully the import of [section] 1752, an examination of the statute's legislative history is helpful. Following the political violence of the 1960s, lawmakers sought to enact legislation that would better protect American leaders. In 1969, Senator Roman Lee Hruska of New Jersey and Senator James Eastland of Mississippi introduced a bill to ensure greater security for elected officials. (28) The bill's purpose was to protect the physical safety of the President and, more broadly, to secure the Office of the President. (29) To achieve these goals, the bill extended federal protection to the President's specifically designated "temporary residences and offices," and to "posted, cordoned off, or otherwise restricted areas where he is or will be visiting." (30)
Senators Hruska and Eastland designed the bill to provide a uniform minimum of federal protection for presidential security when the President is on temporary visits. (31) Prior to the passage of Senate Bill S.2896, local law enforcement agencies provided most security at presidential visits. (32) The Secret Service, however, was charged with the responsibility of maintaining a safe environment for the President even during visits to localities. (33) Therefore, the Service needed to be able to restrict the ingress and egress of people near the President in a standardized manner. (34)
The constitutional implications of Senate Bill S.2896 were not lost on its drafters or civil libertarians. When the Senate passed S.2896, it felt that it had achieved a balance between the protection of the President and America's highly prized and closely guarded protections of free speech. (35) The risk of insulating the President concerned the bill's drafters. (36) Committee members recognized that security should be provided in a manner such that "even the suggestion of a garrison state" is avoided. (37)
Yet the free speech issues raised by such a statute remain. Insulating the President with Secret Service agents and barrier tape assures his safety, but it also threatens to isolate him from the American people with whom he seeks to make contact. What if the people are unable to make their views known because of security restrictions? …