Bush Must Face Free Speech Lawsuit

by Brian Hansen

The suit was filed against the Texas governor by citizens who were arrested and jailed last spring for protesting Bush's environmental policies on the public sidewalk in front of the Texas Governor's Mansion.

The ruling handed down last week by Travis County Judge John Dietz means that Bush and other Texas officials could be compelled to stand trial this fall for allegedly infringing on the free speech rights of the non-violent environmental activists.

"Governor Bush is a named defendant in this lawsuit suit because he's responsible for what happened on the sidewalk in front of his house," said David Kahne, a Houston based attorney representing the activists. "We will be pushing hard to get a trial date set as soon as possible."

A spokeswoman for Bush's presidential campaign would not comment on the case, saying it is a "state matter" that would better be addressed by the Texas Governor's Office. Officials there have not returned phone calls to ENS.

Some protesters represented the Texans United Education Fund while others were from Downwinders at Risk, a group which works to end kiln incineration of hazardous waste at the TXI cement plant in Midlothian, Texas.

The plaintiffs contend that after launching his bid for the White House, Bush conspired with the head of his state police protective detail to enact what the complaint calls an "unwritten" and "subjective" policy designed to keep the public sidewalk in front of the Governor's Mansion free and clear of protesters who attempted to call attention to Bush's environmental record.

The plaintiffs say that the "unwritten" policy was first implemented on March 11, 1999, when some two dozen environmentalists rallied outside of the mansion to protest a Bush backed plan that authorized a Texas company to burn hazardous waste.

The sign-toting activists, many of whom were dressed in unique costumes designed to ridicule the plan, attempted to circulate petitions in opposition to the burning.

Texas Department of Public Safety (DPS) police officers on duty that day refused to allow the environmentalists to circulate their petitions and gather signatures, the lawsuit contends. "Uniformed police officers and unidentified men in blue suits then told the activists to leave the sidewalk or be arrested," the complaint states.

Most of the protesters left the area as ordered. But one woman, who was dressed in a smokestack costume to illustrate her opposition to the Bush backed incineration plan, was arrested by a DPS officer as she was packing up her belongings and attempting to leave, the lawsuit contends.

The woman was handcuffed and placed in a squad car, but she was released a short time later after being told to "get off this property and do not come back," the complaint alleges.

But the environmentalists did come back. Two weeks later, about 50 activists rallied in front of the Governor's Mansion to voice their displeasure with Bush's proposal for a voluntary pollution compliance program, which was at the time being debated in the Texas state legislature.

As before, state police threatened to arrest people who did not leave the sidewalk. Most left because they could not risk arrest.

But Houston resident Rick Abraham did not leave fast enough to avoid arrest. Abraham was arrested and charged with "blocking a passageway," even though he was the only activist still standing on the public sidewalk at the time. Abraham was held in jail overnight.

Frustrated but unwilling to back down, the activists wrote to Bush and informed him that they would be returning to the public sidewalk to express their views on his environmental record. The activists assured Bush that they would not block the sidewalk or interfere with people going to and from the mansion, and they asked the governor to ask the DPS to respect their free speech rights.

But the letter had little effect, as DPS officers once again arrested several citizens who carried protest signs along the public sidewalk.

Meanwhile, as the environmentalists sat in a Travis County jail, Bush held a televised press conference in which he expressly stated his "support" for the exclusionary policy under which the protesters had been jailed.

"The rules have changed," said Bush, when asked why police officers excluded -- and then arrested and jailed -- people for walking peacefully on a public sidewalk. Bush said that he supported "the decision to change the rules," and that "people have just gotta understand what the rules are."

But when lawyers for the plaintiffs and the Texas chapter of the American Civil Liberties Union requested written copies of the so-called new rules, they were informed by both the DPS and the Governor's Office that no such documents existed.

Kahne, who deposed Escalante for the pending civil case, said it is obvious that Bush instructed the DPS to arrest any environmentalists who protested in front of the Governor's Mansion.

"There's abundant evidence, starting with the fact that we have a document that shows how ... the state police were told that when they're ready to put these new rules into effect, check with the Governor's Office," Kahne said.

Attorneys for Bush have steadfastly denied the allegation in court, arguing that it was Escalante and the DPS -- not Bush or the Governor's Office -- who were responsible for the new access policy.

But Judge Dietz, an elected official of the Democratic Party, has twice rejected that argument. His ruling clears the way for Bush to be dragged into a free speech trial on the verge of a presidential election.

Abraham and the other activists who were arrested say that justice in their cases will not be served until the Republican presidential nominee is compelled to testify about the role he played -- if any -- in ordering their arrests.

"Governor Bush is responsible, whether he told law enforcement officers to silence his critics, or simply gave approval with a wink and a nod," said Abraham. "This says that he doesn't understand constitutional rights, or he doesn't believe in them. Either prospect is frightening."

None of the activists arrested for protesting in front of the mansion has been successfully prosecuted. Travis County Attorney Ken Oden decided not to pursue charges against some of the protesters, saying that they did not violate a state law against obstructing a public passageway, as the DPS had alleged.

Other environmental activists were arrested and jailed, but never charged. Austin resident Jim Baldauf who was arrested in front of the mansion on May 25, 1999, was jailed for 24 hours before being set free. Baldauf was never charged.

"Governor Bush thinks he's above the law," said Baldauf. "He's a hypocrite who brags about 'leadership' and preaches about 'personal accountability,' and then he says, 'I'm not responsible.'"

The DPS and its three commissioners, all Bush appointees, are also cited as defendants in the lawsuit. DPS spokeswoman Tela Mange had little to say about the case.

"Really the only thing that I'm going to be able to say is that because it's pending litigation, there's not really anything I can say," Mange said.

The details of the pending lawsuit notwithstanding, Mange declined to discuss the so-called new rules sidewalk access policy at all.

"That's all covered in the lawsuit, and there's not really anything I can say," Mange said. "I'm just not going to get into discussing it. This is something that's being handled down in the courthouse, and that's where I'm going to let it stay."