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Concerned conservatives, not Chicken Littles

By Steve Lilienthal
web posted December 15, 2003

Stalwart supporters of the USA-PATRIOT Act like to pooh-pooh the worries expressed by defenders of privacy and constitutional liberties that innocent people engaging in peaceful protests can be swept up in politically motivated dragnets. They portray the defenders as Chicken Littles expecting the worst. Their message is "trust the government" to apply the powers of the USA-PATRIOT Act correctly.

A recent court case in Michigan that was appealed to the Supreme Court illustrates how laws intended for perfectly reasonable purposes can be stretched to crack down on legitimate political expression. Over a six-year period, James Pouillon, a pro-life advocate, protested outside an automobile dealership in Shiawassee County, Michigan to register his complaint with the company's support for candidates who were backers of legalized abortion. When engaging in his protest activities, Mr. Pouillon stood on the opposite side of the street. Sales manager Lori Rowlison complained, asserting that she felt threatened by the presence of Mr. Pouillion, who was arrested and sentenced to 30 days in jail and five years probation. He was also prohibited from protesting in the vicinity of the automobile dealership during business hours.

In the court's opinion, Mr. Pouillon had run afoul of the state's Stalking Statute which defines the action of stalking as willful conduct that involves continuous "harassment" of an individual that would make the individual feel "terrorized, frightened, intimidated, threatened, harassed, or molested." The Michigan Supreme Court upheld the ruling by a Michigan District Court that stated Mr. Pouillon's demonstration and verbal statements outside the auto dealership did not constitute "constitutionally protected activity."

According to the PATRIOT Act, any violation of state or federal criminal law deemed dangerous to human life, even a misdemeanor such as the one with which Mr. Pouillon has been charged, could be construed as constituting "domestic terrorism." If Federal law enforcement asserts that a crime fits the definition, then the Federal Government would be able to seize the assets of the alleged domestic terrorist without prior notice or a hearing and without filing criminal charges. Through a post-PATRIOT law, it would be able to obtain confidential tax records, bypassing the traditional warrant process. Educational records also could be disclosed to law enforcement without a court review of the request.

The Rutherford Institute appealed Mr. Pouillon's case, intending to argue that Mr. Pouillon was no threat to anyone, simply exercising his First Amendment rights. Nor should his speech be considered "stalking." The Institute believed the rulings by the Michigan courts violated the Free Speech and Due Process Clauses of the U.S. Constitution. The United States Supreme Court denied review despite the assertion by John Whitehead, President of the Rutherford Institute, that "As the Supreme Court has frequently observed, 'A function of free speech under our system of government is to invite dispute.' Michigan's stalking law has been used to silence dispute when it comes to politically charged speech such as pro-life protest."

What happened to Mr. Pouillon sounds bad enough. With its current definition of domestic terrorism, the USA-PATRIOT Act offers several opportunities for opening Pandora's box. This should be of serious concern to political activists, particularly those who are advocates of causes such as property rights, gun owner rights, traditional family values, and pro-lifers.

Conservative activists have good reason to feel reasonably safe that the Bush Administration will be prudent in its use of the domestic terrorism provision. But what about a future administration, perhaps one headed by Hillary Rodham Clinton? Will conservative activists be able to feel so safe? That thought alone should make even the most ardent defenders of the USA-PATRIOT Act think about taking a second look at its provisions and the potential for its powers to be deployed in very different ways than Congress intended. There is no doubt that every right-thinking American wants al-Qaida's terrorists brought to justice. But should those activists like Mr. Pouillon find themselves targeted as terrorists? People who brandish picket signs in support of the right to life, property rights and other conservative causes have every reason to ponder that question.

Steve Lilienthal is Director of the Center for Privacy and Technology Policy at the Free Congress Foundation.

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